V. EVIDENCE CONCERNING PRINCIPAL ISSUES IN THE CASE (continued 12)

22. Chief Public Prosecutor, Jena.

23. Chief Public Prosecutor, Karlsruhe.

24. Chief Public Prosecutor, Kassel.

25. Chief Public Prosecutor, Katowice.

26. Chief Public Prosecutor, Cologne/Rhine.

27. Chief Public Prosecutor, Koenigsberg.

28. Chief Public Prosecutor, Leitmeritz.

29. Chief Public Prosecutor, Linz/Donau.

30. Chief Public Prosecutor, Munich.

31. Chief Public Prosecutor, Naumburg/Saale.

32. Chief Public Prosecutor, Nuremberg.

33. Chief Public Prosecutor, Oldenburg.

34. Chief Public Prosecutor, Poznan.

35. Chief Public Prosecutor, Rostock, at present Schwerin/Meckl.

36. Chief Public Prosecutor, Stettin.

37. Chief Public Prosecutor, Stuttgart.

38. Chief Public Prosecutor, Vienna.

39. Chief Public Prosecutor, Zweibruecken.

40. Plenipotentiary of the Reich Minister of Justice for the Emsland convict camps in Papenburg.

41. German State Minister for Bohemia and Moravia in Prague.

42. Supreme Command of the Wehrmacht, Berlin.

43. Reich Leader SS and Chief of the German Police (Pommerenin) [sic].

44.

[illegible marginal note]

[Stamp] Berlin, 25 January 1944

TRANSLATION OF DOCUMENT NG-230

PROSECUTION EXHIBIT 331

LETTER FROM ARMED FORCES HIGH COMMAND TO THE FOREIGN OFFICE, COPY TO DEFENDANT VON AMMON, 4 APRIL 1944, CONCERNING TWO NOTES OF M. DE BRINON, VICHY GOVERNMENT AMBASSADOR, ON NIGHT AND FOG CASES

Berlin, W 35, 4 April 1944

Tirpitzufer 72–76

Copy

High Command of the Armed Forces

14 n 16.18 WR (I/3)

259/44g

Secret

To the Foreign Office

Berlin W 8

Subject: Prosecution of offenses against the Reich or the army of occupation in the occupied territories

2 enclosures[458]

Enclosed two notes of the French Ambassador and Secretary of State de Brinon are submitted

The High Command gives the following comment upon them:

In virtue of the directions given by the Fuehrer on 7 December 1941, capital punishment will be inflicted on principle in the occupied territories for offenses of non-German civilians which are directed against the Reich and the army of occupation and are endangering its safety or readiness for action. Whenever capital punishment would not be probable or could not be immediately inflicted and executed, the perpetrator will be brought to Germany and sentenced there. In some cases perpetrators who have been sentenced in the occupied territories will be committed for imprisonment to a penitentiary in Germany. This will be done for political reasons on principle in case of capital punishments inflicted on women, men of 70 years and older, and fathers of numerous children under age, excepting punishments inflicted on account of murder or of such crimes which are in connection with actions (e.g., partisans).

The transfer to Germany will be made, in accordance with the wishes of the Fuehrer, in order to make an efficacious and lasting warning example. The Fuehrer desires the relations and the population to be kept in suspense as regards the fate of the perpetrator. To German and foreign bureaus it will be replied to inquiries and petitions—“The perpetrator has been committed to prison, further information cannot be given.”

To Ministerialrat von Ammon

It is therefore impossible to comply with the wishes of the Ambassador de Brinon. The High Command requests you to inform him in due form.

By order:

[Typed] signed Dr. Huelle

Berlin, 6 April 1944

High Command of the Armed Forces

14 n 16.18 WR (I/3)

259/44g

To the Reich Minister of Justice

Berlin W 8

In reference to letter of 17 March 1944 (V s1 263/44g). The above copy is forwarded to you for information

By order:

[Signed] Dr. Huelle

[Handwritten note]

To previous correspondence [illegible].

Prosecution of offenses against the Reich or the army of occupation in the occupied territories

[Initial] A [von Ammon]

2.5

TRANSLATION OF DOCUMENT NG-262

PROSECUTION EXHIBIT 333

FILE NOTE INITIALED BY DEFENDANT VON AMMON ON 10 MAY 1944, CONCERNING THE STATUS OF NIGHT AND FOG CASES AS OF 30 APRIL 1944

Copy

IV n 313/42 secret

Survey of the Status of NN Proceedings on 30 April 1944

I. The following cases were transferred by the military authorities to:

a. Chief Public Prosecutor Kiel— 12 proceedings with 442 defendants.

b. Chief Public Prosecutor Oppeln— 729 proceedings with 4048 defendants.

c. Chief Public Prosecutor Breslau[459]— 1273 proceedings with 2149 defendants.

Total—2014 proceedings with 6639 defendants.

II. Charges preferred by:

a. Chief Public Prosecutor Kiel— 9 proceedings with 345 defendants.

b. Chief Public Prosecutor Oppeln— 494 proceedings with 1578 defendants.

c. Chief Public Prosecutor Breslau— 813 proceedings with 1113 defendants.

d. Chief Reich Prosecutor with the People’s Court— 134 proceedings with 588 defendants.

Total—1450 proceedings with 3624 defendants.

III. Verdicts have been submitted from:

a. Kiel Special Court— 8 cases with 168 defendants.

b. Oppeln Special Court— 307 cases with 725 defendants.

c. Breslau Special Court— 377 cases with 473 defendants.

d. Chief Reich Prosecutor with People’s Court— 115 cases with 427 defendants.

Total—807 cases with 1793 defendants.

[Handwritten] To the files concerning the prosecution of criminal acts against the Reich and the occupying power in occupied territories.

[Initial] A [von Ammon]

10 May

TRANSLATION OF DOCUMENT NG-1886

PROSECUTION EXHIBIT 546

LETTER FROM DEFENDANT VON AMMON TO THE ATTORNEY GENERAL IN MUNICH, 22 NOVEMBER 1944, CONCERNING THE EXECUTION OF NIGHT AND FOG PRISONERS

The Reich Minister of Justice

IV a 676/44g

Berlin W 8, 22 November 1944

Wilhelmstrasse 65

Telephone: 11 00 44

Long distance calls: 11 65 16

Diary No. 1716/44g

SECRET

To the Prosecutor General in Munich 35

Subject: Certification of the personal data of executed NN prisoners

Reference: Diary No. 1584/44g

In view of the new arrangement concerning the treatment of NN prisoners in the future there no longer will be executions of NN prisoners in any large numbers.

Therefore, a closer examination of the suggestions, made by the director of the penitentiary and the detention prison Munich-Stadelheim, is not necessary. I request you to notify the latter accordingly.

By order:

[Typed] Dr. von Ammon[460]

[Official seal of the Ministry of Justice]

[Signed] Ruth

Certified: Court Official

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS RUDOLF LEHMANN[461]

DIRECT EXAMINATION

*******

Mr. King: Will you tell us briefly what your rank was and what your duties were in the High Command of the Armed Forces?

Witness Lehmann: I was the Ministerialdirektor in the High Command of the Armed Forces, and I was Chief of the Legal Division of the Armed Forces.

Q. Do you know of the so-called Nacht und Nebel Decree which was issued in the latter part of 1941 over the signature of Keitel?

A. I am very well informed as to how that came about.

Q. Will you tell us briefly how the Nacht und Nebel program was supposed to work? In other words, what was the theory upon which this “Erlass” or decree was issued?

*******

A. There arose in France, after the beginning of the Russian campaign, the resistance movement which became very active. Hitler complained to the justice administration of the armed forces that on account of their attitude they were not in a position to suppress that resistance movement. That is the general background for the Nacht und Nebel Decree.

In detail this is what happened—In the beginning of October 1941 I received a letter from Field Marshal Keitel—but I want to state here that Keitel was always at headquarters, whereas I was always in Berlin. In this letter, which all my assistants have read, Keitel passed on a directive which he had received from Hitler. The letter was quite long, several pages in handwriting. In that letter, it was expressed that Hitler considered the resistance movement in France a tremendous danger for the German troops. It could be seen that the methods previously used were not sufficient to suppress that movement. There was no sense in passing sentences of prison terms—considering conditions as they were—which were handed down after a long period. That was not the right deterrent which the armed forces should employ; therefore, new means would have to be found.

Q. Now, Witness, you have given us some background on the history of the Nacht und Nebel Decree. Will you tell us with some particularity how the Nacht und Nebel program was supposed to work? In what way were the resisters to be handled under the Nacht und Nebel Decree?

A. Yes. That was also stated in that letter by Keitel. The Fuehrer demanded that Frenchmen who were suspected of such acts, during night and fog—that is where the expression comes from—should be brought across the border and that in Germany they should be held completely incommunicado. That should only not apply in those cases where immediately a death sentence could be passed in France. This measure could be used as a deterrent but not the procedures as had been used heretofore. That was the general plan of Hitler’s which did not include anything about the question as to who should deal with these people after they had been brought to Germany.

Q. Now, Witness, did you, in your position with the High Command of the Armed Forces negotiate with the Ministry of Justice regarding the Nacht und Nebel Decree?

A. Yes, but not immediately. At first, in a lengthy conference with Field Marshal Keitel, I tried to thwart the entire plan because I disagreed—I definitely disagreed with it. Details about that conference, I am sure, are not interesting for us now. In doing that, I only had a very limited success; that is, Keitel said that he would be ready to speak to the Fuehrer once more. But already on the occasion of this first conference, he stated that the Fuehrer insisted on the carrying out of that concept and he used a term which I cannot forget. Hitler had said with reference to that—“Nobody can deny that I am a revolutionary of considerable stature. Then I should know best how uprisings can be suppressed.” Keitel then spoke once more to Hitler, as he stated, but it was of no avail. According to Keitel’s information, Hitler said that there were things of which he understood more than jurists do.

In the conference with Keitel, I raised the question immediately as to who should deal with these matters in Germany now. Thereupon, Keitel said, that it would be most according to the desire of the Fuehrer if the Secret State Police would deal with it. But we were against that from the very beginning, and also Admiral Canaris was against it with the same severity.

After the argument had gone back and forth, I received the permission from Keitel to get in touch with the Ministry of Justice.

Q. Do you have any reason which you can state at this time as to why Hitler preferred the Ministry of Justice rather than the army court system to deal with Nacht und Nebel cases?

A. That question can only have been discussed between Keitel and Hitler. It was a way out which I had suggested, because under all circumstances I wanted to achieve that these matters should continue to be dealt with by judges, and since the aversion of Hitler against the armed forces justice was known, it could be assumed that he would still prefer civilian court to us.

*******

Q. When did you first confer with a member of the Ministry of Justice regarding the assumption by the Ministry of Justice of the Nacht und Nebel program?

A. I went to see State Secretary Freisler, I believe, in October 1941. I went to Freisler because he dealt with the criminal cases in the Ministry. He was in charge of them.

Q. Can you tell us what purpose you had in mind in going to Freisler; what proposition did you discuss with him?

A. I discussed with him the proposition that the cases which the military courts in France would not keep should be taken over and tried by the civilian justice administration.

Q. What was Freisler’s reaction to this suggestion which you made?

A. He was not enthusiastic about it but he agreed that one had to try and keep these cases for the administration of justice as such.

Q. Can you tell me this? Did Freisler have the authority to agree on behalf of the Reich Ministry of Justice to assume the trying of Nacht und Nebel cases?

A. That question I can only answer by saying that Freisler told me that first he had to think it over; and secondly, he had to discuss it with State Secretary Schlegelberger who was at that time in charge of the Ministry.

Q. Is it your impression that Schlegelberger was the individual in the Ministry of Justice to whom Freisler went to secure permission and authority on behalf of the Ministry of Justice to try the Nacht und Nebel cases?

A. That is hard to answer. I can only answer it out of my general background by saying that this was a question of considerable importance, and I thought it was quite clear that Freisler told me that he had to ask the man who was in charge of the Ministry, the acting Minister.

Q. Mr. Lehmann, on 23 December 1946 you put your name to an affidavit. Do you recall signing an affidavit about that time?

A. Yes.

Q. I point out to you that this affidavit is now in evidence before this Court as Document NG-484,[462] Prosecution Exhibit 307. I wish to read to you a statement from that affidavit, and ask you a question concerning it after I have read it. The statement is as follows: “Schlegelberger, who was then acting Minister of Justice, was in my opinion the only person who could consent to take over these Nacht und Nebel cases by the Ministry of Justice.” I ask you now, do you still agree with that statement?

A. Yes, with the reservations that I have made before; as far as I was informed about the routine in the Ministry.

*******

EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[463]

DIRECT EXAMINATION

*******

Dr. Kubuschok (defense counsel for defendant Schlegelberger): To what extent did you participate in the legislative work and the execution of the Night and Fog Decree, the Nacht und Nebel Erlass?

Defendant Schlegelberger: First, I must make a temporal limitation here. The Tribunal knows that on 20 August 1942 I left the Ministry of Justice. Thus, in regard to my person, only the previous period can be considered. During that time the procedure, as well as taking prisoners into custody, remained exclusively in the hands of the Ministry of Justice.

If I am supposed to make some statements about the decree, I would like to emphasize that the jurisdiction of the Ministry did not refer to the western territories, which are under consideration here. This was entirely under the competence of the military commanders. Hitler had issued the order to Keitel that in the future merely in very clear cases, and in such cases where the death sentence could be expected with certainty, the military courts were to pass sentences. The rest of the culprits were, for the purpose of a deterrent by the police, to be transported to Germany to remain under the custody of the police, and—and this is the expression he used—to disappear during night and fog.

The chief of the legal division of the Wehrmacht, Dr. Lehmann, realized what the situation was, and after unsuccessful attempts with Keitel and with Hitler he tried to have it avoided that the prisoners be left in the custody of the police by having them tried before the ordinary courts. He called on Freisler. Freisler did not disagree with Lehmann, and basically asked for my agreement. I gave my approval.

Here, too, I had to make a serious decision. On the one hand, the fate of the prisoners was concerned. If they were in police custody, their fate could not be controlled. On the other hand, there was the necessity to loosen certain regulations which formed definite components of our legal system.

The Fuehrer order was based on the fundamental idea that the deterring force, through the cutting off of the prisoners from every contact with the outside world, could be achieved in this manner. If we now wanted—and this is the decisive question—to have the direction of the prisoners, if we wanted to avoid having the prisoners remain in police custody and thus not carry out Hitler’s decree but break its head, no other recourse was left to us but to conduct our court proceedings under the point of view of secrecy, since otherwise Hitler would immediately have forbidden and actually prevented the fact that ordinary courts should handle these matters.

However, in order to avoid any doubt, I want to emphasize expressly in the following that I have to state we are concerned only with regulations governing proceedings. The NN prisoners were supposed, and were, to be tried materially according to the same regulations which would have applied to them by the courts martial in the occupied territories. The rules of procedure had been curtailed to the utmost extent. In German law we also know of the possibility, because of the endangering of the security of the State, that the public is excluded when the opinion on which the sentence is based is pronounced. We now had to take one more step, to issue an order to make available the possibility that the pronouncing of the sentence itself would not be made in public. One could not avoid the recognition that otherwise the secrecy would not be maintained, and I have to repeat, the cases would have been taken out of our hands immediately.

Everything else was based on this. For example, the limitation in the selection of defense counsel. Germany had a very eminent legal profession, and in my opinion it was a matter of course that every lawyer fulfilled the oath of secrecy given to him by law. However, one had to realize that as with every other profession, the lawyer’s profession too, during such times, was permeated with bearers of the resistance idea, and therefore, here too, a certain caution was needed and it was necessary to limit the selection of defense counsel.

It is well known that in the executive order which I signed—and it was the same as the draft submitted in the document book[464]—that I limited the use of foreign evidence. However, if one thinks the matter through correctly and thinks of the practical application, one will realize that this limitation worked only in favor of the defendants because numerous acquittals occurred according to the principle, that governs other law as well as ours, in dubio pro reo. In accordance with this basic attitude, it was decisive, under all circumstances, to avoid the subsequent transfer of the NN prisoners to the police.

Presiding Judge Brand: We will recess until 1:30 this afternoon.

AFTERNOON SESSION

(The hearing reconvened at 1330 hours, 30 June 1947)

The Marshal: The Tribunal is again in session.

Dr. Kubuschok: We have come to the discussion of the NN regulations. Will you please continue there?

Defendant Schlegelberger: I have taken the liberty to explain that the purpose in including ourselves in the procedure was to counteract Hitler’s plan to have prisoners in the hands of the police. There arose a problem—If one had to consider that in the regular course of procedure a penalty was found which expired before the end of the war. In such cases there would not have been any possibility to keep these people but they had to be taken over by the police and that would have thwarted the purpose—of the inclusion of our administration. That, one had to consider. The matter was simple, if the prosecutor, after examining the facts, arrived at the result that the penalty had to be so low that the term would expire before the expected end of the war because then he did not demand that a date for the main trial be set; the procedure remained pending and the accused remained in the custody of the administration of justice. The situation however could become more difficult if the prosecutor intended to demand a higher penalty which probably would expire after the end of the war and if the court would arrive at a more lenient sentence. The way out could be found only by quashing the proceedings in time and in order to do that various means could be applied. It could have been put to the court, that is, by legislation of course, to make a decision for this continuance, and could also put the prosecutor in a position where he would demand discontinuance and then let the court decide for discontinuance. I took the latter approach. Therefore, I provided that if the court wanted to deviate from the demands of the prosecution it should inform the prosecutor so that he had the possibility to demand discontinuance, but with all emphasis I want to stress there can be no question that the courts were to be bound in any way by the demands for a penalty on the part of the prosecutor. That would have been quite irresponsible.

Presiding Judge Brand: Dr. Schlegelberger, are you still speaking with reference to the NN case?

Defendant Schlegelberger: Yes. So, it is quite out of the question that the courts were to be bound in any way to the penalty as requested by the prosecutor as Freisler has stated in a letter which was written for special service to Thierack and which is quite wrong, but I repeat again, the intention was only for the court to tell the prosecutor, “we are arriving at a milder sentence than you requested,” so as to put the prosecutor in position to demand discontinuance; then the matter remained in the hands of the administration of justice; that is to say that the defendant was in the custody of the administration of justice. May I summarize. The provisions concerning secrecy had to be made so that the matter would not be taken out of our hands by Hitler. I was faced with the problem as to whether I should refuse to take over the NN case altogether, and the Tribunal will recognize that that would have been very simple for me. I could have held the position that as far as my department was concerned that I had nothing to do with the matter and therefore could reject it or refuse to have anything to do with it. But I could not take the responsibility to assist, to contribute, that the Hitler order be carried out and that the NN prisoners remain in the custody of the police. And, I believe that that decision has also found its justification in the findings of the International Military Tribunal concerning the treatment of these prisoners in the hands of the Gestapo.[465]

*******

EXAMINATION BY THE TRIBUNAL

Judge Harding: Dr. Schlegelberger, you have testified that you favored the decree as to Poles and Jews and the taking over of NN prisoners for trial, to avoid having these people turned over to the police, is that correct?

Defendant Schlegelberger: (Nodded in the affirmative.)

Q. Why was that?

A. May I ask you a question, namely, does this question refer to the Poles and Jews, or as I now understand it, to the NN prisoners?

Q. It applies to both.

A. Well, that was for the following reason. From the cases of transfer about which I reported, I saw that the police was the instrument of power that Hitler used in order to do away with certain people without any legal procedure, and I wanted to give those people a legal procedure with a regular trial.

Q. Now the administration of justice at one time, at least, was responsible for the prosecution and trial of all crimes committed in the Reich, isn’t that correct?

A. Yes.

Q. Was there ever an investigation with subsequent trial after 1 September 1939 for the abuse or murder of a person in the hands of the police or in a concentration camp?

A. I can answer that question by saying that the Ministry of Justice as far as I am informed—that is, these matters were in the penal sector—interfered in every case, even in the case of abuses and concentration camps where they could actually do something about it, only since 1939—I don’t remember the exact date—these matters were taken out of our hands through the special jurisdiction of the SS.

Q. I don’t believe you quite answered my question. Did the Ministry of Justice ever call or ever prosecute a member of the police or somebody connected with the concentration camp because of abuse of the prisoners or murder of prisoners in their hands?

A. Yes, the Ministry did so.

Q. In what cases? That was after 1 September 1939.

A. In any case, it did happen before September 1939. I regret, Your Honor, that I cannot give exhaustive information about this because those are events and trials which were outside of my official duty, but I can say with certainty and under the oath under which I am now that because of abuse in concentration camps measures were taken with the utmost energy.

Q. Did a person who had been handed over to the police or who was sent to a concentration camp, including Poles and other foreigners, have any recourse to the law as administered in the Reich, for his protection?

A. Well, if these people were in the hands of the police, we could not extend that protection to them. As long as those people were in a concentration camp, and to the extent that we had any jurisdiction over concentration camps—to that extent we always intervened, if somehow or other we could find out that there had been some abuse; but later on, from 1939 on, these matters came under the special SS jurisdiction, and we were no longer in a position to interfere[466].

Q. After that these people had no recourse to the law as administered in the Reich?

A. We could not give them any legal recourse; we of the Ministry of Justice could not extend legal protection to them.

Q. Did they have any legal protection?

A. Well, I would like to say there was a jurisdiction over the inmates of the concentration camp and this was in the jurisdiction of the SS courts. That SS jurisdiction in accordance with its duty, could intervene in the same manner as we if anything had happened, that was the legal protection afforded to them.

Q. That was the only legal protection they had?

A. Yes, I could not name any other.

Q. Now, by what laws, orders, or decrees were these people left to the sole jurisdiction of the SS and the police?

A. Well, the Poles and Jews, NN prisoners were only handed over to the police after my time in office. As long as I was in office this did not happen.

Q. I mean, by what order or decree—you speak of a time when the SS had their own courts—by what order or decree—

A. The SS got a special jurisdiction through a law of 1939. The handing over of Poles and Jews, of the NN prisoners, and other people took place through measures of the year 1942, I believe. However, I do not want to make this statement with certainty, because it was after I had resigned.

Q. After this order setting up special jurisdiction for the SS the Ministry of Justice could not prosecute them, isn’t that correct—or try them?

A. No, it couldn’t.

Q. Now, I have here this decree which is found in volume 2, on page 55, decree of 17 October 1939, relative to the Special Courts for the SS.[467] Are you familiar with that?

A. Yes.

Q. After that the Ministry of Justice could not try these people for abuse or murder of persons in their hands, is that correct?

A. Yes, I assume so. Please take into consideration when considering my answers that these matters were apart from my official activity. Therefore, I can rather give an expert opinion than a testimony as a witness.

Q. Well, the effect of this decree was to deprive the people in the hands of the police of all legal recourse, is that not correct?

A. The effect was in any case that they had no recourse to the ordinary means of administration of justice. But the SS jurisdiction in my opinion had the same duties, the same possibilities for their people as we had.

Q. The only recourse, then, was to the SS administration of justice—now, on page 56 there is this decree which is signed by you, implementing that order, which places the police beyond the administration of justice.

A. I didn’t quite understand.

Q. I have here on page 56 of volume 2 a decree concerning the jurisdiction of SS courts and police courts in the Protectorate Bohemia and Moravia[468] which implements to some extent the preceding decree which I called to your attention. This decree is signed by you, which sets up Special Courts for the police, that is, takes them out from under the administration of justice. Now, this is signed by you. Do you have any explanation of that?

A. May I ask you to state the date again, just the date?

Q. 15 July 1942.

A. Is that an order which was cosigned by Keitel? (Document handed to the witness.)

Yes. This decree, however, I believe, has nothing to do with the matters we have discussed so far. This decree as far as I remember, was connected with a decree of January of the same year. In this decree of January in the Protectorate military jurisdiction was rescinded, and only for certain cases the Commander in Chief of the Wehrmacht was granted the right, in the matter of attacks against the Wehrmacht, to found the competency of Wehrmacht courts. The text of this decree which concerns itself with the policy is almost literally the same one as that of the decree of January 1942 regarding the Wehrmacht. Here in this decree for the police, they were concerned with certain courts for the SS. But the Wehrmacht SS [sic], which was considered a special group of the SS was supposed to be treated in the same way [as the Wehrmacht]. Therefore, after a discussion between Keitel and the commander of the SS Wehrmacht [sic], the possibility just as it was given to the Wehrmacht, was given to the SS as a fighting troop, to found such courts. But this has nothing to do with the question of SS jurisdiction, which is another question.

Q. Were there any other orders or decrees issued whereby prosecution of SS and similar units was taken out from under the administration of justice, and if so, what were they?

A. Yes, there was a special law about SS jurisdiction. At the moment, I cannot tell you the date, but it was from 1939. That is the civilian SS. But this decree refers to the SS as part of the Wehrmacht.

Q. Well, is that the decree of 17 September 1939 that I called your attention to?

A. The decree which you were kind enough to show to me just now.

Mr. LaFollette: Will Your Honor permit me? It is October. Your Honor said September.

Judge Harding: It is October, yes.

Defendant Schlegelberger: Yes, 17 October 1939. That is the decree about the SS jurisdiction.

Q. After that decree, did the Ministry of Justice have any means whereby they could protect a person in the hands of the police in any way whatsoever?

A. In my opinion, no; and that is why I tried to keep all these people away from the police. That is why I wanted to keep all these people within the sphere of the administration of justice, so that I could protect them.

Q. Then these foreigners, Poles, and Jews in the hands of the police were beyond any recourse of law in Germany, is that correct?

A. Not in my opinion.

Q. What recourse did they have?

A. Well, they probably had to turn to the higher SS office and to ask for help.

Q. Was that recourse in law or is that merely administrative?

A. Yes. That was more administrative.

Judge Harding: That’s all. That answers my question.

*******

EXTRACTS FROM THE TESTIMONY OF DEFENDANT VON AMMON[469]

DIRECT EXAMINATION

*******

Dr. Kubuschok (counsel for defendant von Ammon): You have stated that you were not a confirmed National Socialist. In view of your attitude, did you not have conflict of conscience sometimes during your activity in the Ministry of Justice?

Defendant von Ammon: To a certain extent I have to answer “yes” to that question. In my official activity, I occasionally had to apply laws or other legal regulations or had to follow instructions issued by my superiors with which I was not quite in agreement in my own mind. In such cases I considered it my duty to follow such regulations and provisions which in my opinion though unpleasant were after all effective. Likewise, I considered it my duty to follow the instructions issued by my superiors. However, I would not have considered myself obligated to follow instructions issued by my superiors which were contrary to law. Such illegal orders however were not given to me. In such cases, however, a certain amount was left up to my own discretion and that happened in many cases. When I applied that discretion I tried as far as possible to make my own opinion apply. Of course, the possibility in those directions were not overly large since as a Referent I had to obtain the agreement of my superiors, the more important decisions. Because of my lenient attitude I was frequently objected to, especially by my superior Vollmer and the Minister of Justice Thierack.

Q. Did your attitude change when the war broke out?

A. Due to the outbreak of the war nothing changed in my basic attitude. I was of the opinion that since the war had broken out, independent of its consequences for national socialism, it would bring about the decision, “to be or not to be” for Germany. Therefore, I believed that every German had to fulfill his duty in his official position.

Q. I now come to the main charge which the prosecution has raised against you in regard to your dealing with the so-called NN cases. Under what circumstances were you entrusted with this new field of work?

A. The distribution of the Referate [sections] was as a rule made by order of the department chief without asking the Referent about it in advance. Thus, I too in February 1942 was assigned by my department chief, Ministerial Director Crohne, to work with NN cases without my knowing for the time being what these NN cases were all about.

Q. What tasks and authorization did you have as Referent of Department IV of the Ministry of Justice for NN cases?

A. In order to answer that question I first have to describe briefly the competency of Departments III, IV, and V.

Department III was the department for criminal legislation, Department IV was for the administration of criminal law, Department V was the department for the administration of penalties. It belonged to the competency of Department III; the preparations of the laws and regulations similar to laws, the housing of prisoners belonged to the competence of Department V and the treatment of these prisoners while they were in prison. Department IV, that is my department, dealt in the main with the cases against the defendants until they were sentenced by a court, including the clemency procedure. Furthermore, the issuance of general provisions regarding legal procedure in as far as Department III was concerned was not competent for this.

Q. As far as Department V was competent, what authorization did you as Referent have with regulation to your superiors?

A. Gramm and Mettgenberg have already testified to this, here on the witness stand. I only have to add some supplementary remarks. As Referent, I had to a certain extent the right to give my signature, that is to say, to a certain extent I could give written or oral statements by order. This right for signature, however, was limited, since due to my being subordinate to the department chief, and for the most part of my activities I was subordinate also to a subdepartment chief. During the first month of my activity in the NN cases my section was directly under the department chief. A few months later, however, Mettgenberg was put in charge as a subdepartment chief between me and the department chief. My authority in relation to my subdepartment chief and department chief were limited through general regulations rather carefully. The regulations applied which were contained in Exhibit 510 submitted by the prosecution.[470] May I refer to these regulations? Regarding the letters by the Ministry of Justice that were sent outside the Ministry of Justice which were submitted by the prosecution, in accordance with the provisions I mentioned, I did not sign a single one finally, but all the letters after I had also cosigned them I submitted to my subdepartment chief for signature. He then for the most referred them to the subdepartment chief or even to the under secretary or to the minister. If the prosecution, contrary to this, in this submission of several documents, stated that the letters of the Ministry of Justice were signed by me, that is an error. There are throughout letters for which I did give a cosignature, that is in the right hand lower corner, they bear my initials, but one of my superiors gave the final signature.

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Q. As Referent in NN cases, did you have a large staff of assistants?

A. No. I never had more than one assistant, and he worked only part of the time in NN cases, and then only at the beginning of my activity with NN cases. From the beginning of 1943 on I worked entirely without any assistance. From that time on, due to the heightened drafting for the Wehrmacht, younger gentlemen who could be assistants, were available only to a very limited extent in the Ministry of Justice. From that time on I had only a so-called “Mittlerer Beamter,” a civil servant in the intermediate level [of civil service] for registration and filing.

There was a special provision only for preparation of clemency pleas in death sentence cases. For that work, I had assistance from time to time.

Q. I refer to that extent to Document NG-988, Prosecution Exhibit 510, the plan of distribution of work which shows further facts. Witness, please give us a survey over the periods when the general administration of justice participated in the NN cases.

A. We can distinguish between two periods during which the general administration of justice was concerned with NN cases. The first period extends from February 1942 until October 1942; the second from October 1942 until September 1944, and to some extent until the end of the war. During the first period the executive regulations of the Reich Ministry of Justice of 6 February 1942[471] were decisive in their original form as they had been issued by Schlegelberger and Freisler. Two factors characterized this period. First, the police were involved in the NN cases only to the extent that the transportation of the NN prisoners from the occupied territories was carried out by the police; and secondly, for the sentencing of NN cases only some Special Courts were competent. The competency of the People’s Court did not exist at that time, for those cases.

The second period begins with the changes which were introduced soon after Thierack assumed office. The police now also became competent to the extent that the NN prisoners, for the detention of whom no legal reason existed any more, were transferred to the police for protective custody for the duration of the war.[472] And for the trying of NN cases, in addition to the individual Special Courts, the People’s Court now is competent too. This second period ends with the order that the NN prisoners should generally be returned to the police. This order was issued in September 1944. The return, however, was carried out until the end of the war only partly so that at the end of the war numerous NN prisoners were still in the detention of the administration of justice.

Q. We shall now turn to the first period for which the executive regulations of 6 February 1942 were decisive. Witness, were you involved in the drafting of these regulations and the discussions with the OKW which preceded this decree and which the witness Lehmann testified about?

A. No. I neither participated in the formulation of the regulations nor in the preceding negotiations. The regulations were worked out in the departments for penal legislation, first Department II and later III, and at that time I did not belong to either of them. About the regulations and the preceding negotiations, I heard only on the day when the regulations were issued. On that day—it was 6 February 1942—the presidents of the courts of appeal and the attorneys general of those districts in which the NN cases should in the future be tried, had been ordered to the Ministry of Justice for a discussion.

Immediately preceding the beginning of the meeting my then department chief, Ministerial Director Crohne, had a message sent to me that I should come to the meeting because in future I would have to work with the penal cases which would result from the newly issued regulations.

I then attended that meeting and for the first time, from the mouth of State Secretary Freisler, who was presiding over the meeting, I heard about the Night and Fog Decree and the executive regulations issued pursuant to it.

Q. In the executive regulations of 6 February 1942 there are provisions about the limitation of foreign evidence. Paragraph 5 of the executive regulations, Exhibit 306[473], which, however, are here only in draft form gives this regulation—The use of foreign evidence material requires the prior agreement of the public prosecutor. Furthermore, paragraph 4 of the same regulation provides that the senior public prosecutor has to obtain the decision of the Reich Minister of Justice before he can use foreign evidence material or can agree to the use of foreign evidence material by the court. This latter regulation is contained in Exhibit 308[474].

The indictment asserts that it was one of the purposes of the NN procedure to prevent the defendants from having access to witnesses or any other evidence. What do you have to say about this?

A. First, I would like to correct you, Counsel. You quoted paragraph 4 of the circular decree of 6 February 1942, and by mistake you said that this was the same provision as paragraph 5 which you mentioned before. These are two different regulations. First is paragraph 5 of the executive order of 6 February 1942. That is Exhibit 306, and the second regulation is paragraph 4 of the circular decree of the same day, and that is Exhibit 308.

In answer to the question of what I have to say about the allegation in the indictment, that it was one of the purposes of the NN procedure to make it impossible for the defendants to have access to witnesses or any other evidence, I have to say that that assumption is entirely wrong. The limitations on foreign evidence material was not one of the purposes of the NN procedure, but the absolutely undesired result which resulted from the necessity of keeping the matter secret.

It could never result in a disadvantage for the defendant but would of necessity result in favor of the defendant. The German criminal procedure is based on the assumption that the defendant has no duty or no authority to prove anything. Therefore, any doubt had to work in favor of the defendant. In the same way, doubts which arose out of the limitation of foreign evidence worked in favor of the defendant. Moreover, foreign evidence was in no way excluded altogether but it should only be procured and used in such a way that the secrecy of the proceedings and the keeping incommunicado of the defendant would not be endangered.

Q. What was the effect of the regulations about the limitation of foreign evidence in practice?

A. According to my observation, in the majority of cases these regulations did not lead to any difficulties. In many cases the clarification of the facts was accomplished by the statements of the defendants or codefendants or on the basis of German evidence. This was the case especially in the numerous cases in which simple facts were involved. Thus, for instance, in most of the cases of illegal possession of weapons, a weapon was found in the possession of the defendant. Beyond this, the use of foreign evidence was admissible as far as the secrecy of the proceedings was not endangered by this. Thus, the Ministry of Justice in any case permitted that a foreign witness not before the court trying the case but in the occupied territories could be examined by an investigating judge. If this, however, did not bring about the desired result, if there still existed some doubt as to the guilt, the defendant had to be, and was, acquitted. According to my observations, probably in all courts which had to deal with NN cases, a large number of acquittals were pronounced, because owing to the limitation of foreign evidence defendants could not be convicted. I remember, in particular, extensive trials before the Special Court of Oppeln against numerous defendants who were charged with participation in dangerous resistance movements in Belgium. According to the indictment, I was under the impression that heavy sentences would be pronounced. In effect, however, the result of the trials was quite different. The defendants maintained that it was not a dangerous resistance movement, but a harmless club. In view of the limitation of foreign evidence it was impossible to disprove this defense. Thus, the defendants had to be acquitted, or they could be given only slight penalties because of participation in a club not authorized by the military commander.

Q. Paragraph 6 of the executive orders of 6 February 1942 which have already been mentioned—that is, Exhibit 306[475]—makes the following provision: The public prosecutor can, until the sentence is pronounced, withdraw the indictment or ask that the trial be postponed. The court has to agree to the application of the prosecutor for suspension. If the court wants to deviate from the application made by the public prosecution, it has first of all, to afford them an opportunity to state their opinion.

Witness, what can you say about this regulation?

A. Dr. Schlegelberger, when he was examined, commented extensively on these regulations. I only have to add the following: The procedure described was, as Dr. Schlegelberger stated, introduced in order to prevent NN prisoners from being transferred to the police. For the court itself, in view of its prestige, it probably was not very pleasant. The authors of that regulation realized that too. As I said already in my affidavit of 17 December 1946, that is Exhibit 337[476], even Freisler said in this meeting of 6 February 1942, that with this regulation one had reached the utmost limit of what one could expect of the court. The authors of this regulation, however, believed that they had to put up with that regulation in the interest of the NN prisoners.

Q. The regulation of paragraph 6 of the executive orders which we just discussed—was it ever applied in practice?

A. I don’t believe so. The regulation was in effect only for a brief period. Thierack, in October 1942 soon after he became Minister, rescinded it. During the time that this regulation was in effect, as far as I remember, only very few NN cases were tried. These were clear cases in which the court had no misgivings against agreeing with the plea of the prosecutor. If that regulation would have been applied, the Ministry certainly would have been informed about it, and I certainly would still remember it.

Q. On the changes which Thierack ordered in October 1942, Dr. Mettgenberg has commented.[477] Did you have misgivings against these changes, especially also against the transfer of NN prisoners to the police?

A. The changes which Thierack made also had, without doubt, a favorable side. The unpleasant regulation of paragraph 6 of the executive order of 6 February 1942 was removed. Even Freisler, as I mentioned before, stated about it that with this regulation the outside limit had been reached of what could be expected of the courts. Now, this bad condition was removed, that the justice authorities of the administration had to detain persons in whose cases the reason for detention had to be maintained by the procedure discussed by Dr. Schlegelberger. On the other hand, the transfer of the NN prisoners to the Gestapo was without doubt unpleasant. After the competency of the general administration of justice for the detention of NN prisoners who were acquitted or whose time of arrest had been removed, it again was returned to the armed forces. According to the provision of the NN decree, however, the armed forces, as a rule at least, were not allowed to return these NN prisoners to the occupied territories. Neither, for the reason of keeping this matter secret, could they be set free in Germany. The only way out that Thierack saw was their detention by the Gestapo and the OKW who in the last instance had to decide about this affair agreed to the suggestion by Thierack. If now I am asked if, in regard to the treatment of the prisoners by the police, I had misgivings, I can answer that in the following way: The prisoners were handed over to the police with the express provision that the detention was carried out only for reason of secrecy and in the interest of keeping the whole affair secret. Therefore, the Gestapo merely had to detain them and not to carry out a penalty. As far as I know, in the negotiations between Crohne and the Gestapo, the representatives of the Gestapo stated that in the case of detention of NN prisoners, they would take into consideration the fact that against the prisoners personally there was no longer any charge. Later on, the Reich Leader SS also ordered expressly that the NN prisoners, who were handed over to the police, always should be put on the level of Protective Custody I which was the most lenient level.

Q. I refer to Exhibit 328[478] in regard to the last statements made by the witness.

Witness, as Mettgenberg testified in September 1944, the general administration of justice was again deprived of the competency for NN cases. It was ordered that NN prisoners generally should be handed back to police. What can you say about this?

A. I can confirm the statements made by Dr. Mettgenberg to their fullest extent and only have to make a few supplementary remarks. As Mettgenberg already testified, in the discussions at the OKW, which took place in the beginning of September 1944, the witness Hecker and I represented the Ministry of Justice. Since the matter could not be reported to Minister Thierack in advance, my department chief, Vollmer, had given me the instruction to reserve the right for the Minister to state his opinion. I acted accordingly during the negotiations. The representatives of the OKW then also agreed that the OKW would forward a draft of the intended order of the OKW to the Ministry of Justice and that the Ministry of Justice could then state its opinion on the draft, in writing.

In place of that the OKW then sent us an already filed decree which ordered the discontinuance of the NN procedures and the transfer of NN prisoners to the police. When I reported this to Mettgenberg and together with him to Vollmer, he was very much displeased about the manner of handling used by the armed forces. Vollmer said the OKW had byplayed us in that manner, and he instructed me to talk to the representative of the OKW by telephone and protest against this manner of conducting this business. He said the decisive thing, however, was that the regulation made by the OKW had to be accepted according to the division of business, as the OKW was competent for NN cases.

In accordance with the instructions given by Vollmer, I then telephoned the representative of the OKW and expressed our surprise at the manner of handling this. The representative replied that this was a misunderstanding and he regretted it very much; in any case I can testify that on the part of Department IV of the Ministry of Justice, no agreement for these regulations was given, but that Department IV only through force submitted to the regulation which was made without its agreement.

Q. The meeting in the building in the Reich Military Supreme Court in the beginning of September 1944 was presided over by Dr. Werner Huelle and at that time he was supreme judge. I submit an affidavit by Dr. Huelle that was taken on 17 July 1947.[479] Following the usual introduction formula, it reads as follows:

“By order of the chief of the legal department of the Wehrmacht I presided over the discussion in the beginning of September 1944 in the building of the Reich Military Supreme Court in Berlin. In this meeting the question of the transfer of the NN prisoners was dealt with. The basis of this discussion was a Fuehrer order, which had ordered the return of the NN prisoners to the police.

“The representative of the RSHA insisted on the giving back of the prisoners who had already been sentenced, since the will of the Fuehrer referred also to those and by saying so he referred to a classification which Himmler had written about to Hitler.

“Although in view of this the discussion could have only the value of a technical discussion. I consider it absolutely possible that the referents of the Reich Ministry of Justice reserve to themselves the right of obtaining the opinion of their minister since they had not received instructions from him. More exact statements I can no longer make from memory. In what manner and by whom my office then received a statement by the Ministry of Justice, I do not know since I was not the Referent. With absolute certainty, however, I can say that only the transfer to the police for the purpose of commitment for labor for urgent armament work was considered for which the manpower of the prisoners was needed. My superior, Generaloberstabsrichter Dr. Lehmann, who himself had formerly been a member of the Ministry of Justice, always attached importance to relations without frictions with the administration of justice, and therefore, he had the questions which interested both offices discussed in common.”

Presiding Judge Brand: Will you tell me the author of that affidavit? I did not catch the name.

Dr. Kubuschok: Huelle. I submit this affidavit and ask to reserve the number, von Ammon Exhibit No. 2, for this affidavit.

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Dr. Kubuschok: From the documents submitted by the prosecution, it is apparent that keeping NN prisoners incommunicado was one of the main peculiarities of the NN procedure which was applied from the very beginning. In the opening statement by the prosecution, among others you too are being charged with having systematically carried out and approved these regulations about keeping the procedure secret. In this connection, Exhibit 319[480] is of interest. It contains a circular decree by the Reich Minister of Justice in which several directives are given as to how agencies of the Ministry of Justice are to handle NN cases in order not to endanger the cutting off of NN prisoners from the outside world. What can you say about the origin of this circular decree?

Defendant von Ammon: The circular decree was caused by reports of the Chief Public Prosecutors in Cologne and Essen, about the difficulties resulting from the strict regulations about keeping the NN prisoners incommunicado, especially when NN prisoners died, and they had made suggestions for overcoming these difficulties. The report of the Chief Public Prosecutor in Cologne is contained in Exhibit 314.[481] In this report the decisive questions are dealt with under paragraph [II and] III. The report of the Chief Public Prosecutor in Essen was not submitted in this trial here.

Presiding Judge Brand: The morning recess—15 minutes.

Dr. Kubuschok: Before the recess, you answered the question as to the origin of the circular decree which we discussed. Please continue.

Defendant von Ammon: The circular decree, Exhibit 319, which took issue with the questions raised in the reports from the senior public prosecutor at Cologne and Essen was, as Mr. Mettgenberg has already stated here, the joint work of both Departments III and IV of the Ministry of Justice. I participated in the work on that particular decree, insofar as the competence of my department was affected by drafting the provisions contained in it. Various questions that were settled in that circular decree did not affect the competence of Department IV at all. Thus, for example, the question of burials of NN prisoners who died a natural death while serving their sentences and the question of the possessions they left behind was a matter for Department V to deal with. To that extent only Department V was responsible for the provisions which had been worked out. Apart from my section, there were other sections, partly in Department IV and partly in other departments which were competent. The questions which emerged therefore had to be dealt with by these various sections cooperating.

Q. What are your comments about the contents of the circular decree in general?

A. By that circular decree the existing provisions concerning secrecy were not made more severe in any way. The stringent provisions concerning the seclusion of the NN prisoners from the outside world had applied since the NN decree as such had been issued. As far as we were concerned it was a shock from the very beginning that in the case of the death of an NN prisoner, the relatives could not be informed. That was true in the case of a natural death, as well as in the case of a death sentence being carried out. We, naturally, were aware of the severity of such a provision, but we did not see any possibility of avoiding it, but as far as that was possible within the scope of the severe provisions we wished to take into account the principles of humanity. We did want to make sure that persons who had been sentenced to death would have spiritual care. We did wish to afford them a possibility not only to leave a holographic will but also to make a real testament before a notary or judge. We also wished that NN prisoners who had died should have a proper funeral. That was the purpose of the provisions in the circular decree of 6 March 1943.

Q. Please comment on the more important details of that circular decree?

A. The provisions under paragraphs 1, 3, and 5 of the circular decree, I believe speak for themselves. Concerning the other provisions I would like to say this. Paragraph 4 said that farewell letters by NN prisoners were not to be sent out. That was not a new provision but that was the unavoidable consequence of the NN decree, since the general administration of justice had to deal with NN cases. As early as the first day when the NN provisions had come into force, the Department V, the administration of punishment, had issued a provision to the effect that NN prisoners were not allowed any correspondence. The farewell letters of prisoners who had been sentenced to death also came under that provision. Paragraph 4 of the circular decree furthermore reads that the farewell letters from NN prisoners were to be kept in custody for the time being by the prosecution. It was to be made sure that the farewell letters, when the NN provisions would be rescinded, that is to say, at the latest at the end of the war, would be passed on to the relatives. Paragraph 6 of the circular decree laid down that the relatives were not allowed to receive information about the death of NN prisoners. That was a repetition of the old provision which had existed since the NN decree as such had been issued. It was an unavoidable consequence of the NN decree as such. Paragraph 7 of the circular decree laid down that the dead bodies of NN prisoners who had been executed or who had died from other causes were to be turned over to the Gestapo for their funeral. That provision is not new and is not peculiar to the cases of NN prisoners. That is obvious from Document NG-257, Prosecution Exhibit 322. That document contains the reply from Thierack to the complaint by the chief of the Security Police, that this opinion had not been obtained before paragraph 7 of the circular decree was issued. Thierack’s reply points out that that provision did not provide new tasks for the Gestapo. That the Gestapo was to carry out the funeral, that in itself was not of a dishonorable nature, but funerals in cases where the relatives could not take care of them, that in Germany is one of the duties of the police. Whereas, under the general regulations in such cases the corpse is offered to an anatomical institute for research purposes, an exception was made in the case of NN prisoners, and the corpse was buried. As the provision shows, we, of course, ordered that every NN prisoner receive a grave of his own which was not identified by his name, but figures or something of that nature.

Finally, paragraph 8 of the circular decree laid down that the possessions which NN prisoners had left behind were not to be handed over to the relatives. That also was the necessary result of the provisions which dealt with the seclusion of the NN prisoners from the outside world. On the other hand, we ordered that the possessions which the NN prisoners had left behind were to be taken in custody by the NN prisons and once toward the end of the war, a general public prosecutor—concerning the watches and other articles left behind by NN prisoners, wanted to make his own regulations. Naturally, I repudiated that view.

Q. In its opening statement the prosecution said this: If the armed forces in the occupied territories arrested the people by mistake, who quite evidently had not been guilty of any form of resistance against national socialism, then those victims, for the sake of keeping the program secret, had to be treated in the same manner in which other persons were treated who succeeded in getting away with a prison sentence. Is that correct?

A. That assertion by the prosecution is not correct. First of all, I consider it out of the question that the general authorities of the administration of justice ever had persons handed over to them who quite evidently had not made themselves guilty of any resistance to the occupying powers. Persons who had been arrested were not moved into Germany immediately after their arrest, but to begin with investigations were carried out inside the occupied territories and in particular the defendant was interrogated. In the course of those investigations obvious errors were soon discovered, and in that case the person concerned was not moved to Germany but was set at liberty in the occupied territories. May I refer to the testimony by the witness Lehmann?[482] He testified that the agency of the armed forces in the occupied territories had issued provisions which were to make sure that as far as possible only such matters were handed over to the general administration of justice which were clear cases on account of the evidence that had been obtained. If it did happen after all that a person who was obviously innocent was taken into Germany—I cannot remember that such a case ever occurred—there was the possibility to transfer him to the occupied territories. In this respect, I refer to Documents NG-226, Prosecution Exhibit 313 and NG-205, Prosecution Exhibit 328.

Q. According to the indictment one of the purposes of the NN proceedings is supposed to make it impossible for the NN prisoners to have access to a defense counsel. What do you have to say about this?

A. First of all, the same is true here that was true of the limitation of evidence obtained abroad. Certain limitations of the defense which had been ordered for NN proceedings were not the purpose of NN proceedings, but a consequence which resulted of necessity from the particular manner of these proceedings and from the wartime conditions.

We must distinguish between two different limitations of defense. First of all, a limitation of choosing a counsel; and, secondly, limitation of having counsel appointed by the court.

Q. Please comment first about the limitation of the free choice of defense counsel.

A. In respect to the seclusion of the NN prisoners from the outside world, which had been ordered, the executive office of the Ministry of Justice, in carrying out the NN decree from the beginning believed that a limitation of the free choice of defense counsel was necessary, but they believed that the provisions in paragraph 3 of the circular decree of 6 February 1942 would be sufficient.

Q. That circular decree of the 6 February 1942 is contained in Exhibit 308.[483] I quote the provision concerned: “The choice of a defense counsel requires the consent of the presiding judge who can only give such consent with the agreement of the public prosecutor. The consent may be withdrawn.” Please continue.

A. In the subsequent time, however, we found those provisions not to be sufficient, in order to guarantee the secrecy of the proceedings which after all had been ordered. As the decisive document on the subject is available to the Tribunal I can be brief. I am referring to Exhibit 314.[484] The document contains a report by the senior public prosecutor at Cologne, dated 15 October 1942. In that report he states at length that, so as not to endanger the secrecy of the NN proceedings, he had doubts about consenting to allowing a defense counsel to be chosen freely.

Similar reports, as far as I recollect, were received from other senior public prosecutors as well. The document also shows that at the Reich Ministry of Justice we only, after careful examination, decided on further limiting the free selection of defense counsel. From marginal notes which, however, can only be seen on the photostat of the document and which have not been entered in the document books, the following is to be seen. The question of the free choice of a defense counsel, I first on 22 September 1942 reported on to my subdepartment chief. In accordance with the result of that report of 1 December 1942, I then discussed the matter with the expert of the OKW over the telephone. He first of all reserved his opinion, but on 12 December 1942, he told me that the OKW took the view that the admission of defense counsel selected by the defendant in NN matters was not desirable.

We then contacted Department III of the Ministry of Justice, the department of penal legislation, and when that department took the same view as the OKW, Departments III and IV of the Ministry of Justice issued the joint regulation of 21 December 1942, which is contained in Document NG-255, Prosecution Exhibit 314.

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Q. What about the limitations concerning the necessity of defense?

A. Originally concerning the necessary defense, a provision in paragraph 7 of the executive order of 26 February 1942 applied, according to which the appointment of a defense counsel required the consent of the public prosecutor. May I point out that the following wording of the executive order of 6 February 1942 has not been submitted here as a document. Exhibit 306[485] merely reproduced the draft of that executive order. The provision concerning the necessary defense was issued immediately before the executive decree was issued, and it is therefore not contained in the draft which we have before us here. In the subsequent period opinions were voiced according to which further limitation of defense was considered necessary. The prosecution has submitted Exhibit 317.[486] Although that document unfortunately is very incomplete, it does show that at the Special Court at Essen there had been difficulties in appointing defense counsel as frequently several defendants were dealt with in one proceeding and, on account of the collision of interests, a defense counsel had to be appointed for each defendant.

It is obvious that, in view of having to maintain the work of the court in general, the simultaneous employment of a large number of defense counsel was not desirable. Insofar, the desire of limiting the defense by appointed defense counsel was understandable.

If the report from the presiding judge of the Special Court at Essen points out that the interests of the defendants did not justify so much strain placed on manpower and material, I would point out in this connection that not one of the persons who dealt with the subject at the Reich Ministry of Justice shared that view.

The matter itself was then dealt with at Department III and not in our Department IV, because it concerned a proposed change of a legal regulation. The Referent of Department III then informed me of these events and made a suggestion of his own which unfortunately is not contained in this document.

I then reported the matter to Mr. Mettgenberg and together with him to Mr. Vollmer. The result of that report can be seen from the note made on 1 February 1943 which is initialed by Vollmer and which also bears Mettgenberg’s and my initials.[487] That note provides for certain limitations of defense counsel appointed by the courts, but the document does not show the wording of the decree as it was actually issued later on.

What I remember is that after that decree had been issued, the limitation of defense counsel, appointed by the courts, applied neither to proceedings before the People’s Court nor did it apply to those proceedings where the death sentence could be expected. How insignificant the practical effect of this limitation of the appointment of defense counsels by the courts was is revealed by the position which defense counsel hold under German code of procedure, a position which has been discussed here repeatedly. For the rest, according to my observations, the Special Courts in practice almost always appointed defense counsel.

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Q. Please state some details about the practice followed by the courts.

A. In the final result, and that is still my conviction today, the jurisdiction of the general courts in NN cases was absolutely adequate. This applies to the matter seen as a whole. It applies to the jurisdiction of the People’s Court and especially to the jurisdiction of the Special Courts. In the case of the Special Courts you will see that few death sentences were pronounced whereas the People’s Court in a large percentage of cases pronounced death sentences. However, the percentage of death sentences is not as high as I assumed in my affidavit of 17 December 1946. That is Exhibit 337.[488] In this affidavit I stated—purely off hand, I would like to say—that the majority, that is, more than fifty percent of those indicted before the People’s Court were sentenced to death. I made that statement at the time to the best of my knowledge. However, I did not have any documents of any kind at my disposal, and I had to rely on my memory alone. Today, after I take into consideration the statistical material which the prosecution has submitted, I would assume that about fifty percent of the NN cases sentenced by the People’s Court were sentenced to death. The death sentences which the People’s Court passed were, I think, justified; and I can even say from an international point of view, the death sentence was appropriate. They were cases of espionage, guerilla activities, serious cases of aiding and abetting the enemy, as well as the support of enemy parachutists, etc. About the offenses which were the basis for sentences for the People’s Court, the witness Walter Roemer[489] also testified here in this Court. I refer to the testimony of 24 April by this witness. I can also refer to what the defendant Lautz[490] said here on the witness stand. After examining the statistical material, I have to correct another sentence from my affidavit of 17 December 1946. In that case I stated that aiding and abetting the enemy always practically resulted in a death sentence before the People’s Court. After careful consideration, however, I have no reason for expressing the opinion that the number of death sentences was larger in the case of aiding and abetting the enemy than in the case of espionage and guerilla activity. Here, too, I assume that the death sentence amounted to fifty percent.

Characteristic sentences in these courts were those pronounced for illegal possession of arms. I have already mentioned that in the decree issued by the military commander in normal cases the death sentence was provided and only in lighter cases a prison sentence. In fact, only very few death sentences were pronounced because of the illegal possession of arms. These cases were special cases, as for instance possession of an entire ammunition depot. In an overwhelming majority of cases—and I want to state that illegal possession of arms as far as the number of cases played an important role—only prison sentences were pronounced for the illegal possession of arms. The action by the president of the district court of appeals of Katowice who in the discussion at Oppeln instigated a more severe punishment because of possession of arms was at that time generally rejected. In the few cases in which because of illegal possession of arms, the death sentence was pronounced, almost without exception the execution of the death sentence was avoided by clemency pleas.

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Dr. Kubuschok: I now come to the clemency proceedings of the Reich Ministry of Justice in death sentences pronounced for NN cases. Please comment on this.

Defendant von Ammon: The clemency procedure in NN cases was in principle the same as in the case of other death sentences. However, there were some peculiarities. One of these was that the Gauleiter did not participate in the clemency proceedings, because the crime had been committed in occupied territory and not within the sphere of a Gauleiter.

A further peculiarity consisted in the fact that Hitler, as I already mentioned before, reserved to himself the right to make the clemency decision in death sentences pronounced against women from the Occupied Western Territories.

Finally, I should like to point out that in NN cases, because of the lack of the possibility of a deterrent, there was no so-called “lightning” [Blitz] executions. The practice in regard to clemency questions followed by Thierack was, as has been discussed here frequently, severe. It was not easy for a Referent to succeed in getting clemency granted by him. Nevertheless, I succeeded in doing so in a number of cases.

However, when I made the attempt to bring about the granting of a clemency plea in several cases, I became subject to the scorn of Thierack who made derogatory remarks about the obstinacy which I applied.

Q. The NN regulations in the execution of which you had to cooperate—did you have any misgivings about them?

A. In the application of the NN regulations I was, of course, conscious of their severity. I considered especially severe the strict regulations about the seclusion of NN prisoners from the outside world which made any correspondence of the NN prisoners with their relatives impossible. Furthermore, I considered very severe the regulations which provided that on principle also those NN prisoners, to whom no offense or at least no serious offense could be proved, should remain in custody. That I considered very severe. But I kept to the statements that were made when these regulations were issued, that these regulations were necessary in order to suppress the increasing resistance movement in the occupied territories.

The regulations issued seemed to me to be still better than—and this would have been possible in the case of offenses against the occupying forces in the occupied territories—indiscriminate death sentences.

As the witness Lehmann testified here, the seclusion of NN prisoners from the outside world was, so to say, the price to be paid for the possibility of greater leniency in sentencing. Under this point of view it seemed to me to be acceptable. That very strong resistance movements existed in the occupied territories, which in a certain sense could be considered as a second illegal army and influence the military situation considerably, is an historical fact.

Q. Did you have an opportunity to give up your NN section and to take over another section?

A. As I already stated in the affidavit of 17 December 1946 which I quoted repeatedly, I did not like dealing with NN cases. Whether a person likes his special professional field is, on the whole, dependent on his inner attitude. In any case, I can say about myself that the activity in a section in which of necessity, severity, and above all, death sentences appeared, was not to my liking, especially since people were concerned who as such were not criminals and who could not be denied a human understanding.

For that reason, in the summer of 1944, I made the attempt to swap my section with another section in the personnel division of the Ministry of Justice. At that time it was intended to promote Ministerial Counselor Wittland who was a member of the personnel division. In that case he would have left the Ministry of Justice. The section comprised organization of the courts and civil service law.

At that time I requested to receive this section when Wittland would leave. From August 1944 until January 1945, I used part of my time in order to get acquainted with the personnel department. However, the Party Chancellery then objected to Wittland’s promotion, and, therefore, it did not take place; and I had to remain in my former section.

Q. Did you regard the NN regulations as being within the framework of international law?

A. In answering that question, I have to make a clear distinction. The NN decree was signed by Keitel on order of Hitler. The executive regulations for the NN decree were issued, first of all, by the OKW and for the sphere of the Ministry of Justice, by the Ministry of Justice. The basic executive regulations of the Ministry of Justice in regard to the NN decree were not worked out by me as Referent nor in my department at all. Apart from the leadership of the Ministry, the penal legislation department, Department III, was competent for this. Department IV and I as Referent were in a certain sense merely executive organs in the application of the existing legal regulations.

The examination as to whether the NN decree and the basic executive regulations were in accordance with international law was therefore up to the people who were competent for the issuance of the decree and working on the drafting of the regulations. But the executive organ neither has the duty nor the right for review as has been discussed here frequently.

Of course, as a jurist, I thought about these questions and can say that crimes of that nature as were prosecuted as NN cases can be punished with the most severe penalty according to international law, and that penalties of that kind are also usually applied by all states as is obvious, I believe; that courts martial which otherwise would have tried such cases in the occupied territory, were replaced by civil courts in the home country, is also not contrary to international law.

And now, as to the limiting regulations of the NN procedure, the essential factor was that a just decision by the court was not prevented by them. In the statements I have made so far, I have pointed out that the limiting regulations of the NN procedure did not exert a negative influence for the defendant in the proceeding.

Keeping the prisoners incommunicado had been ordered by the Fuehrer order and by the military authorities. The question of military necessity was not subject to review by us. International law puts these military interests above the personal interests of the inhabitants of the occupied territories.

From all these considerations I did not see that the NN regulations were contrary to international law.

Q. Since the prosecution has submitted documents about the conditions in concentration camps against all defendants who continued working in the Ministry of Justice after 1942, I have to ask you too what you knew about occurrences in concentration camps.

A. My various official positions could not afford me any knowledge about such events. Even at the time when members of the SS did not yet have their independent jurisdiction, when reports about these excesses in concentration camps could thus still reach the Ministry of Justice, my section was not affected by this, and this was entirely regardless of the fact that these reports only provided knowledge of a very small section of actual conditions.

In conversations, too, within the Ministry I heard very little about these matters, probably because they were treated as secret, and I was not in a special confidential relationship with the Referenten who were working on these matters. For those reasons, for example, the occurrences in the Kemna and Hohenstein camps being known to me only here during this trial. I myself never visited a concentration camp. As far as private knowledge is concerned, I considered being kept in the concentration camp, of course, as something unpleasant, especially since the camps were cut off from the outside world, the uncertainty of the period of detention, the lack of orderly legal recourse. That abuses might have occurred for those reasons I assumed without knowing anything definite about it. I did not have acquaintances who had been in a concentration camp and from whom I might have found out some definite details. Although I had quite good relationships with Protestant church circles, for example, I did not even know, did not gain any definite knowledge about Niemoeller’s[491] being kept in a concentration camp. About systematic killings and mass exterminations I heard only after the surrender.

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CROSS-EXAMINATION

Mr. Wooleyhan: Mr. von Ammon, last Friday you stated with regard to your relationship with the Nazi Party that you were a victim of Nazi propaganda and that you were not an enthusiastic Party member for ideological reasons. Weren’t you omitting some very important events in your political career?

Defendant von Ammon: First of all, I believe that I did not express myself in that cross manner, that I described myself as a victim of Nazi propaganda. I only stated that under the influence of Nazi propaganda I saw many a thing in a more favorable light than it actually was, and that I was not an enthusiastic National Socialist, because from my ideological point of view, much kept me apart from the Party. I am not aware of the fact that I left out anything important when making such a statement.

Q. Then you don’t consider it important, noteworthy enough to remember, that on 9 November 1923 you actively participated with Hitler and others in the famous Munich Putsch; why don’t you remember that, Dr. von Ammon?

A. Of course, I remember that, but it is not correct that I left these events out, rather I stated that as a high school student as well as a college student I belonged to patriotic youth organizations and to Nationalists’ associations. Among these Nationalists’ associations also belonged the Bund Oberland, which actually, as you indicated, participated in the so-called Hitler Putsch of 9 November 1923.

Q. As a result of that Putsch in which you participated, wasn’t Hitler tried and imprisoned for high treason, for trying to overthrow the German Republic by force?

A. Yes.

Q. Were you tried, Dr. von Ammon?

A. No.

Q. Why not?

A. Because my participation in the Hitler Putsch was so insignificant. By the way, my participation wasn’t at that time even found out by the authorities, as was the case with the great majority of those who participated.

Q. If your participation and membership in the Nazi activity at that time had become known, you would have lost your job in the government, wouldn’t you, or did you have a job at that time?

A. No, certainly not. First, I was still a college student at that time, as I stated before, and also I do not believe I would have lost my job. Many participants that is, many civil servants who participated at least, if they took part in a subordinate role such as I were not in any way affected in their positions. Moreover, I would like to state at that time it was not a Nazi activity within the meaning of that phrase, the Bund Oberland was not a National Socialist organization. It was a patriotic, self-protective organization, which in the years after the First World War in the fight against the attempted Communist uprising and in the fight against the Polish uprising in Upper Silesia in 1921, without a doubt had gained its merits. To be sure, I participated in the Hitler Putsch at that time, but at that time the fronts were not so well delineated as yet that the actual Putsch could be described as unequivocal Nazi action.

Q. If that is so, Dr. von Ammon, apparently officials in the Ministry of Justice were not aware of it really, because as I read your official personnel files here which came from the Ministry, and which I am sure you have seen many times with respect to your membership in the early political associations, you are credited with having participated, and I am quoting, “in the Nazi uprising in Munich on 9 November 1923.” Now, in later years, Dr. von Ammon, did the Nazi Party ever give you any tangible momento of that famous event of 1923?

A. First of all, in order to correct you, I would like to say that I never saw my personnel files, as you assume, Mr. Prosecutor. I do not know at all what is written in these personnel files. As far as the question is concerned whether I have a tangible momento of my participation in the Hitler Putsch, I have to answer that this momento was limited to a pass which permitted me to participate in the festivities which took place yearly on 8 and 9 November in Munich—

Q. Ah—

A. And I may also add that I only seldom made use of this pass.

Q. What number was that card or pass?

A. Unfortunately I don’t recall.

*******

Q. Now, Dr. von Ammon, there is just one thing further in this custody-of-the-Gestapo business that confuses me. After the arrangement had been made late in 1944 to transfer these Nacht und Nebel prisoners to the Gestapo for protective custody, there has been a lot of talk here about the fact that the court authorities finally handed these people over to the Gestapo, at least in some measure.

What actually was involved in this handing over of Nacht und Nebel prisoners to the Gestapo as far as the courts and the justice administration were concerned? By handing over, what actually did happen, so far as the courts and the Ministry are concerned? Did you sign a release? Did you actually put them in trucks and take them to the other side of town, or what happened?

A. Unfortunately I cannot give you that information. You have to turn to the Referent of the department for penal administration, to the witness Hecker,[492] who carried out those transfers.

Q. Dr. von Ammon, with respect to the winding up of the Nacht und Nebel affairs in the Ministry in the handing over of these people to the Gestapo, the witness Hecker in Exhibit 416[493] says that you attended a number of the conferences during which this method was ironed out. It’s surprising that you don’t know how it happened. How did these people get off your hands? Was it a paper transfer, or what was it?

A. No, two ordinances of Departments IV and V were issued at that time, and they were issued to the chief general prosecutors concerned, to the effect that they were to transfer the prisoners to the competent authority, the Gestapo.

*******

Q. You mentioned that the courts in enforcing the Nacht und Nebel program by trying Nacht und Nebel defendants, particularly the Special Courts, had been moderate in their sentences. Now, in view of that, I’m wondering if that is true for the reason that after the Nacht und Nebel program was terminated by these arrangements in 1944, you wrote a letter to the Attorney General in Munich and you told the Attorney General in Munich that in view of the new arrangement concerning the treatment of Nacht und Nebel prisoners in the future, namely their transfer to the Gestapo, “There no longer will be executions of Nacht und Nebel prisoners in any large numbers.”[494] Now, tell me, Dr. von Ammon, if these courts were so lenient and gentle with these Nacht und Nebel defendants, why did you see fit to mention that death sentences weren’t going to be in any large numbers in the future? That’s the same as saying they were large in the past, isn’t it?

A. I stressed above all that the sentences passed by the Special Courts were moderate. It is true that the Special Courts only passed a few death sentences. I did say, however, on the contrary that the People’s Court did pass a large number of death sentences and even mentioned that 50 percent of the persons indicted by the People’s Court were sentenced to death. Those sentences which were intended to be executed in Munich were sentences which had been passed by the People’s Court.

Q. In any event, whether it was the People’s Court or the Special Court, after that Nacht und Nebel program was dissolved, you were of the opinion then that large numbers of death sentences would not be passed in the future?

A. No, actually I was of the opinion that no further death sentences would be passed. The only thing that could still happen was that death sentences would be executed that had been passed prior to September 1944.

Q. And from your letter, it appears that up until that time, they had been large in number, does it not?

A. Well, that is a relative concept—that word “large.”

Q. Oh, of course.

A. I believe that in view of the long period of time—from 1942 until the end of 1944—the number of death sentences which were actually passed is relatively small.

Q. May it please the court, the prosecution offers as Document NG-1886, Prosecution Exhibit 546, the letter written by defendant von Ammon which we have just been discussing.

Presiding Judge Brand: The exhibit is received.

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EXAMINATION BY THE TRIBUNAL

Presiding Judge Brand: I understood you to say that you did not know of any innocent person who was brought to Germany under Nacht und Nebel procedure.

Defendant von Ammon: I was referring to the assertion of the prosecution. The prosecution had maintained that evidently innocent persons had been treated in exactly the same manner as guilty NN prisoners, and it was in reply to that, that I stated that evidently innocent persons were never brought to Germany at all; that is to say, as far as my knowledge goes. If, however, it did happen that a person was evidently innocent and had been brought to Germany, then there was a possibility of releasing him back to the occupied territories.

Q. I still understand you to say that you knew of no innocent person brought under Nacht und Nebel procedure.

A. It may have happened, naturally, but—

Q. I am referring to what you said. Did I correctly understand you to make the statement that you knew of no innocent person who was brought to Germany under Nacht und Nebel procedure?

A. I would like to restrict that to evidently innocent persons, as opposed to a person whose innocence only later was made clear. That naturally happened, too, and such cases did occur and such cases were brought to Germany.

Q. That is a very material modification of your former statement, because you also said that considerable numbers were acquitted. I assume that you do not consider that persons who were acquitted were necessarily guilty; you presume them innocent if they were acquitted, don’t you?

A. Or that the evidence was not sufficient to prove them guilty.

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REDIRECT EXAMINATION

Dr. Kubuschok: In reply to a question by the prosecutor, you spoke of your membership with the Bund Oberland, and you stated that the Bund Oberland on 8 November [9 November] 1923 took part in the so-called Hitler Putsch. You stated that the Bund Oberland was an association—a so-called Nationalistic association of which many members were college students. Did that organization Oberland at a later time ever become incorporated in the NSDAP? Did that nationalistic organization ever become a National Socialist unit by way of incorporation?

Defendant von Ammon: No. After the Bund Oberland had participated in the Hitler Putsch on 9 November, it was dissolved. I believe that at some time later on it came back to life, but I personally no longer took any part in it. As far as I know, it never in any way was incorporated in the National Socialist movement.

Q. How far did you participate in the events of the night of 9 November 1923?

A. The company of the Bund Oberland to which I had been assigned was alerted, on the evening of 8 November 1923. I was not alerted because my name was not on the alert list. I had joined the Bund Oberland only a little before that time. Therefore, I was only told about it on the morning of the 9th. I then joined my company which was stationed in an inn by the Isar, at Bogenhausen, in Munich. There I spent a few hours with the company; then we marched off to the East. There we disbanded and returned to Munich one by one. That was my participation in the event of 9 November.

Presiding Judge Brand: May I ask you—were you armed? Were you armed at that time?

Defendant von Ammon: Yes, I had a gun.

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E. High Treason and Treason, Malicious Acts, Undermining the Military Efficiency, Public Enemies

PARTIAL TRANSLATION OF DOCUMENT NG-685

PROSECUTION EXHIBIT 259

EXTRACTS FROM A LETTER BY CHIEF PUBLIC PROSECUTOR AT HAMM TO THE MINISTER OF JUSTICE, FOR DEFENDANT SCHLEGELBERGER, 29 JANUARY 1941, CONCERNING TREASON, BREACH OF REGULATIONS BY FOREIGN WORKERS, CRIMINAL PROCEEDINGS AGAINST POLISH CIVILIANS, AND APPLICABILITY OF DECREES AGAINST PUBLIC ENEMIES AND VIOLENT CRIMINALS

The Chief Public Prosecutor

3130 a GSTA. 1.06/216

Hamm (Westphalia) 29 January 1941

Telephone: 1780-87

REGISTERED

To the Reich Minister of Justice

Attention: Under Secretary Dr. Schlegelberger

Berlin W 8

Wilhelmstrasse 65

Subject: Situation report

Enclosures: 2 copies of the report 2 printed forms 1 bulletin of the Criminal Police Office, Dortmund

I. High Treason

The department in charge of high treason cases is highly taxed because of the numerous, and in part also very extensive emigrant problems. Upon my request, the president of the court of appeal has seen to it that the criminal senate will hold 4–5 meetings a week from now on. I hope that in this way the majority of all cases can finally be settled in the course of the spring.