V. EVIDENCE CONCERNING PRINCIPAL ISSUES IN THE CASE (continued 15)

Q. What did the senior public prosecutor do?

A. In this connection it may be necessary to point out that there was a definite regulation which I find in the official gazette for the diocese at Regensburg, published by the bishop’s office, Regensburg. In this publication, periodical, is a reprint of a decree, an official decree, concerning the spiritual care of civilian workers of Polish nationality employed in Germany. The bishop’s office reprints that decree by the Reich Defense Commissioner in the defense districts 7 and 13. Our area was in that district and this was published for the information of the priests. The decree deals in detail with everything that had to be done. Figure 5 is of importance. It says that the interment of Polish civilian workers, male or female, can be taken care of by German priests. Participation of the German population has to be reduced to the absolutely necessary minimum. No sermon may be held. That decree contains eight sections. I do not know if the remainder is interesting to the Tribunal. I could just refer to them if it is desired.

Q. If the Court is interested, will you please refer to them.

Presiding Judge Brand: You may.

Defendant Rothaug: First, on figure 1, it is stated that participation of civilian workers of Polish nationality in the church services of the German population is prohibited. Then it is stipulated that church services for Polish workers, male or female, have to be conducted separately. Where there aren’t enough Poles living, individual spiritual care is permitted, but under all circumstances it should be avoided that Poles and Germans should be together in the same room for that purpose. Services should only be conducted in the German or the Latin language. Publication of newspapers, periodicals, or Sunday magazines in the Polish language is prohibited. The priests had to restrict themselves just to the spiritual care of the Polish people. It ends with the words as follows: It is expected that the German priests should always be conscious of being Germans and of the duties arising from that fact and that offenses will be punishable.

Dr. Koessl: Was it made clear whether Schosser knew anything about that regulation?

Defendant Rothaug: That, at first, could not be seen from the report received, but after he was interrogated, he referred to the fact that he had not known anything about all these circumstances and that that was what had got him into this trouble.

Q. Now, we want to find out what happened after that report was made.

A. It is first asserted here that I had commissioned Ferber, or that I had told Ferber that he should issue an arrest warrant, but Ferber had told me that he did not know what reasons to give for it and that subsequently I had handled the matter myself with a vicious remark and had issued the arrest warrant. The background history of that arrest warrant seems very dubious, but I don’t think it necessary to enter into that. On 15 June 1942 I issued the arrest warrant and that arrest warrant was based upon article 2, paragraph 1 of the insidious acts law, and article 130a of the Penal Code. In the case of this article 130a of the Penal Code, we were concerned with the so-called Pulpit Article, the offense of abusing the pulpit. It is of importance that that article alone which would have supported the proceedings, is a regulation which has nothing to do with national socialism, but is an article which emanates from Bismarck’s time, the time of the “Kulturkampf” [cultural struggle] in Germany, and the then liberal democracy factions in Germany brought it about against clericalism. This concept is found in article 130a. The arrest as far as facts were concerned was not based upon the circumstances that Schosser conducted that funeral for the Pole, but because as one could assume, and certainly can assume today, but on his knowledge of the German regulations and provisions and on announcing the intended funeral, and the transfer of the body from the morgue to the cemetery in order to persuade the German population to a far-reaching extent to participate, and therefore, to indirectly demonstrate its opposition against the regulations of the State. The funeral itself is not a matter for the church, but a matter for the State for the government of Germany, and the clergymen are only permitted to participate in the funeral, and to perform the duties commensurate with religious custom, to say the prayers, and everything that belongs with it. But the funeral was actually carried out by the municipal office. The discussion of such a matter and the announcement, conscious of the fact that it would cause a disturbance among the population, that was against the provisions of article 130a; and if this is connected with the intention to demonstrate opposition against measures of the State, which was certainly the case here, then the prerequisites required by law are complied with, and I do not know of anything further to investigate; but if all these elements are there, I have the obligation to issue the arrest warrant, and on that basis I did.

Q. Now, the witness Schosser has pointed out that he had already been arrested by the Gestapo, and that at that time he had been punished; he had been sentenced to 14 days. Can you determine from the files whether you issued the warrant of arrest before you knew of the police measures against Schosser?

A. From the files it can be seen without doubt that when I issued the warrant of arrest, I did not know anything about the occurrences at the Gestapo office of Regensburg which found its climax in the protective custody imposed upon Schosser for 14 days. That can be seen from the following.

Q. When did you receive information about that from the Gestapo?

A. I was just going to say that because you have already asked me. On 15 June 1942 the prosecution sent the arrest warrant to the Secret State Police at Regensburg. Subsequently, on 18 June 1942 the Secret State Police Regensburg replied with the information that it did not want to carry out the arrest at that time because a police measure was imposed, that is to say, the protective custody for 14 days on Schosser and returned the files together with the arrest warrant to the senior public prosecutor and that is the way he was informed in connection with that funeral. The Secret State Police already had taken measures. I was not informed about these facts, as can be seen from the file. Just the same, that arrest warrant was carried out, and that was justified.

Presiding Judge Brand: May I ask you a question. Would you tell us in a few words the specific provision of the insidious acts law which was violated in this case? I don’t understand that.

Defendant Rothaug: That was article 2, section 1. I can read it if you think it is desirable; I can quote it if you think it is desirable.

Presiding Judge Brand: I would like to hear that if it is brief; I haven’t it before me.

Defendant Rothaug: This is the provision. Schosser—

Dr. Koessl: Give the legal provisions, Witness.

Defendant Rothaug: Yes, that is what it is. It is suspected that Schosser made vicious remarks in public, derogatory remarks about the leadership of the State, the NSDAP, its provisions and institutions—

Q. Witness, will you please read the insidious acts law itself—rather than—

A.—which are designed to undermine the confidence of the people in the leadership. In connection with that I want to mention that we always include the actual text of the law in the arrest warrant.

Presiding Judge Brand: Give me the date of that law, please?

Dr. Koessl: The insidious acts law.

Defendant Rothaug: The insidious acts law is of 20 December 1934; 20 December 1934.[547]

Presiding Judge Brand: That is all.

Dr. Koessl: And now will you please tell us—

Defendant Rothaug: The law speaks of statements, but the same applies to behavior which permitted a conclusion, that is to say an act which looked at on its own merits may be correct, but by the evaluation which it is given by others, may have the character of a malicious act. I have also explained that we were not informed about these matters. The defendant was arrested and was questioned before the local court in Weiden.

Q. Did he do anything about his arrest?

A. He filed a complaint against the arrest, he filed a complaint against the arrest warrant; a decision was made.

Q. About that appeal, did you have anything to do with that decision?

A. That decision was formally not correct, but substantially it is very interesting because by that decision the complaint against my arrest warrant was rejected; and rejected by the one person who now charges me with having issued that arrest warrant. That was signed—it happens to be signed by Mr. Ferber, who asserts that I had pulled a dirty deal with my arrest warrant.

Q. You yourself had nothing to do with that decision?

A. I had nothing to do with that decision; the case went on and was soon suspended after the defendant had been interrogated, and that was one thing we didn’t know when we issued the arrest warrant, he explained that for quite some time he was in the army, and it was granted him that he might not have been as well informed about the entire atmosphere around the question of Poles in Germany as one would have expected otherwise. The case was suspended on 27 August 1942, with the reason that it could not be proved that the defendant intended to demonstrate his opposition against the measures of the State concerning Poles.

Q. You have been charged that because that case was not successful, you had initiated a second proceeding, the one concerning the sermon. Will you please, first state what the prosecution had decided already on 9 July 1942, that is to say, before the end of the first proceeding. You find it on page 12 of the files, a disposition made by the prosecution on 9 July.

A. That is the worst part of the charges which are raised against me in this connection. As I have said, I can refute it by documents, by just mentioning several documents in chronological order which will clarify the connections. In the file concerned with the funeral of the Pole, on page 12, 9 July 1942, there is a short disposition on the part of the prosecutor where he requests a list of previous connections and political record. Therefore, for that funeral case, one wanted to have the political record of Schosser from the Party. The prosecutor shouldn’t have done that really, but he was new there, and he committed that blunder, and that was how the whole thing started. It was prohibited to request any political record of a clergyman because one considered—one knew generally that the clergy was against national socialism; that was no secret; but now in spite of that, the Party reacted upon that request and sent a certificate of that kind, not to me, but to the prosecutor who requested it.

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Q. What was the course of the second case, the case of the sermon? In that case, serious charges were also made against you concerning the treatment of the clergyman Schosser. Will you briefly describe the course of those proceedings, and will you please state whether the part you took in that case justifies the charge of being the main instigator leveled against you?

A. In the further course of the proceedings that charge cannot be considered since the proceedings were already started when the case came before me. On 25 August 1942, I issued the arrest warrant. We did not go as far at that time as the confession or the statements made by Schosser in the trial would have permitted us to go. If we had assumed that his entire sermon from beginning to end was directed against the wolves in sheep’s clothing, we could have characterized the case as one of high treason, and we would have had to pass it on for that reason to the competent authority. We only assumed that in the course of the sermon various doubtful statements had been made which had nothing to do with God the Father, and that was how it came to trial.

Nothing further happened. Investigations were carried out such as in every other case, and there was a defense counsel.

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Q. Now we want to continue; where did the session take place in the second case?

A. In the town hall court at Amberg.

Q. What parts of the population attended that session?

A. All categories of people. The court room was right in the center of the town and when people had found out that there was something going on, they just came.

Q. What was the composition of these people, according to their denominations?

A. The great majority of the population was Catholic.

Q. Did you have to take certain considerations on account of that?

A. Of course. One had to avoid anything which could hurt the religious feelings of these people. Cases against clergymen required a great deal of caution and a great deal of tact so that no wrong impressions were made, because it was generally considered undesirable to make the impression, in any way, that it was intended to injure the religious feelings of these people.

Q. What, in brief, were the charges against Schosser and how did he defend himself against them?

A. The charges did not refer to the entire sermon, the subject of which was false prophets, but two basic thoughts were mentioned. For one, the thought that the leading individuals—meaning in the State—intended to take the Catholic faith from the people. In addition to that, the defendant also was charged with having attacked the principle prevailing in Germany of religious freedom. That was the charge.

Q. Schosser asserts that his sermon itself was really not the focus of interest; but that you had dealt emphatically with the matter of a funeral, and you had included that in the case. Is that correct?

A. The matter of the funeral was not the subject of the indictment so far as it was not considered a basis for any legal facts in connection with it, but it was merely mentioned in the course of the trial. It is correct that this matter was discussed in connection with the matters contained in the indictment, but not in the manner that it was the most important part of the trial. It was quite legally admissible to mention it, as I have mentioned.

Q. Can you prove, from the files, that the prosecution submitted the files concerning the sermon question to the court?

A. That can be seen from the file.

Presiding Judge Brand: Is that file in evidence?

Mr. Wooleyhan: No, Your Honor, it is not.

Dr. Koessl: The case was only discussed by the witness Schosser.

Defendant Rothaug: By an order in the file SG 948 from the year 1942 (matter of the funeral), the prosecutor decided on 27 August 1942, under III, “Filed without subsidiary file”, that the matter SD 1312 of 1942—that is the sermon matter—after that file had been returned, was to be attached. By way of that disposition, these files concerning the funeral were submitted by the prosecution as material evidence, together with the sermon file, with the consequence that I received that material and had to discuss it with the prosecution witness at the main trial. That was legally permitted at all times. The judge was authorized to touch upon matters which had become either the subject of amnesty, or where an acquittal had occurred, or on matters referring to cases that had been suspended, or where a sentence had been passed. He could touch upon all these matters in a different case and discuss them for the purposes of the case at hand. Whether that became the basis for an evaluation for that new trial—that, of course, could only evolve from that main trial and the discussions therein.

Q. What was the basic purpose of discussing that question on your part?

A. The fundamental purpose of discussing these matters was to specify the obligation that all individuals and all offices had to heed the measures and regulations issued by the State, and the final purpose was to establish what basic attitude the defendant himself had with regard to that problem.

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Q. Schosser says you had attacked him on account of his profession, and you had attacked, in fact, the entire clerical profession. What was it about these alleged attacks?

A. That just isn’t so. As was required for every case, the interrogation was a conversation between myself and the defendant and, in the course of that conversation, I went into the question that people, if they wanted to go to church, wanted to hear about heavenly matters and didn’t want to hear anything about politics. If he wanted to deal with questions of that kind, he shouldn’t have become a clergyman but a politician.

Q. In connection with the education of youth, you are supposed to have reproached him that in the house of his parents, he hadn’t been educated in the National Socialistic sense.

A. That kind of a conversation would have been straight nonsense because Schosser was born in 1909 and, at that time, there was no such thing as national socialism. Consequently, I could not blame him. * * *.

Presiding Judge Brand: We understand your answer.

Dr. Koessl: It is also asserted that you reproached him that the Catholics were saying that Protestants were going right to hell. Quite briefly, please.

Defendant Rothaug: That again was an entirely different thought. I set forth that the German State has two great denominations and many others and can, therefore, be neither Catholic or Protestant but only absolutely neutral. It was, of course, up to him personally in his clerical field to speak for the accuracy of his opinion and his faith. If you are of the opinion that all those who are of a different denomination will go to hell, it is impossible for the State to share that opinion. As far as we are concerned, everybody will go right to heaven.

Q. Another question, quite briefly. Will you tell us what was said about Rosenberg?[548]

A. The name Rosenberg was brought in in the following manner. Schosser himself referred to it because his line of defense was that he had not intended to attack the Party by his statements but new [religious] ideas [neopaganism] and that he particularly intended to turn against Rosenberg with his statements. Thereupon, I told him that at any time it was his right to refute the thoughts which Rosenberg developed in his book, “Myths of the 20th Century,” in his sermons and to prove that they were wrong, only he had to specify what he intended to refute and whom he intended to refute because that, of course, was the most important thing of the trial. He had to exclude any possibility that these things might be carried into the general political field. That was the basis for my thoughts.

Q. Under what provisions was Schosser sentenced?

A. On the basis of article 130a of the Criminal (Penal) Code and article 2 of the Insidious Acts Law,[549] that is to say, according to German law both provisions became applicable; as we would have said technically, there was a sort of a legal connection between the two laws.

Q. Would Schosser have been punishable if there hadn’t been an Insidious Act Law?

A. Of course, on the basis of article 130a.

Q. As far as the facts are concerned, had the case Schosser been dealt with leniently or severely?

A. As far as the facts were concerned, it had been dealt with most leniently because the basis of suspicion was that the entire sermon of the false prophets and the roving wolves in all its structure and tendency was a political attack against the government. Schosser, when he was heard here as a witness, more or less admitted that. In our evaluation, however, we did not go that far, but we only referred to these two basic attacks.

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EXTRACT FROM THE TESTIMONY OF DEFENDANT KLEMM CONCERNING PROSECUTION EXHIBIT 291 AND LIMITATIONS ON DIVINE SERVICES[550]

DIRECT EXAMINATION

Dr. Schilf (counsel for defendant Klemm): The prosecution in this connection submitted another document, Prosecution Exhibit 291, that is Document NG-770.[551] It deals with the problem whether church services could be held in penal institutions. I ask you whether you had anything to do with that matter?

Defendant Klemm: Yes, and I remember it quite well because I had a rather hot argument with Thierack about that matter.[552] Thierack, without informing me, prohibited that any church services could be held in penal institutions. I found out about that directive through the Deutsche Justiz—the periodical for German Justice—of 1944, on page 270. I immediately went to Thierack and referred to ethical reasons, but he did not abstain from his intentions. Then I used stronger arguments. I told him that I knew from the period of my work in the Party Chancellery that Hitler himself had issued a strict order that during the war all measures which might cause struggles with the church should be abstained from. Thierack doubted that. I offered that I would get a written confirmation from the Party Chancellery about that. He forbade that I write to the Party Chancellery. I told him in the course of the conversation that I was quite sure what the outcome of that matter would be. The moment one bishop would turn to Hitler, Hitler on account of his basic attitude would disavow Thierack.

A short time later when letters were received from German bishops, from the Protestant side as well as from the Catholic side, I went to Thierack and he became rather thoughtful and agreed to rescind the former order. That happened in a very carefully stated form, but it actually occurred. Especially for that matter, I claim a certain amount of credit.

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