V. EVIDENCE CONCERNING PRINCIPAL ISSUES IN THE CASE (continued 5)

d. Penal cases against Poles, Jews, and other foreigners.

e. Penal cases of special importance concerning crimes committed by, or against minors.

f. Crimes due to tragic unfortunate circumstances.

g. Penal cases in which a decision on the kind and degree of punishment is especially difficult or in which uniform handling is especially urgent.

h. Penal and civil cases in which persons are involved who are State or Party officials, or dignitaries, or who hold other eminent positions in public life.

i. Penal and civil cases in which it is clearly the intention of the parties to call in agencies not connected with the judicial authorities.

k. Penal and civil cases in which there seems to arise a conflict between the established law and the necessity of an economically and socially, reasonable solution.

l. Penal and civil cases concerning the interests of State and Party, or political and economic problems, as well as problems of foreign policy and ecclesiastical problems, or the effects of the war (for instance bomb damage, matters concerning urgent payment of church rates in kind, etc.).

m. Penal and civil cases in which legal problems of a general nature arise which require uniform handling by the courts.

[Stamped] [Signed] Rothenberger, Dr

Enclosure 3

The President of the Hanseatic Court of Appeal

Hamburg, 7 May 1942

To the Presidents of the Civil Senates and of the Criminal Senate

The Fuehrer’s speech and the Reichstag resolution of 26 April 1942 make it necessary to do everything possible in the organizational field in order to secure jurisdiction of the kind the Fuehrer expects, especially in wartime. As announced in my speech of 1 May, I therefore intend to inform myself as extensively as possible prior to the trials of cases which are of political significance, or which involve the possibility of a certain contradiction between formal law and the public sentiment or National Socialist ideology in order to discuss matters if necessary with the presidents in question. Incidentally, I expect the presidents more than ever before to confidently submit to me for discussion matters involving the afore-mentioned problems. To obtain information as far as the civil senates and the criminal senate of the Hanseatic court of appeal are concerned, I have requested the president of the senate, Dr. Struve, at present my permanent deputy, to assist me by holding conferences with the presidents of the senates at regular intervals at which the presidents will furnish a review of the cases which will come up in the near future. Generally the report can be brief. But it must furnish sufficient details in cases which require special attention according to the Fuehrer’s speech, in order to enable my deputy to decide whether my intervention is necessary or expedient. In this connection the facts of the case and the decisive legal points of view will have to be discussed. I expect that these arrangements which are only destined to serve jurisdiction and to strengthen the position of the judges will meet with general approval, and I hope that my deputy will be fully supported by you. I shall of course continue to be at your disposal for personal discussions.

[Typed] [Signed] Rothenberger

The President of the Hanseatic Court of Appeal

3150 E—1a/4

Hamburg 36, 1 June 1942

Registered

To: State Secretary Dr. Schlegelberger

Reich Ministry of Justice

Berlin

Your Ordinance of 9 December 1935—Ia 11012.

Following up my report of 11 May 1942 on the situation, I beg to inform that I have, in the meantime, taken the same steps in Bremen which I had taken in Hamburg as a consequence to the Fuehrer’s speech. The authorities at Bremen (the Lord Mayor, the Kreisleiter, the President of the Police, the head of the Secret State Police, and the head of the SD district) have made the same arrangements with me as did the respective Hamburg authorities.

[Signed] Rothenberger

c. Testimony of Defendant Rothenberger Concerning His Memorandum on Judicial Reform

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[263]

DIRECT EXAMINATION

*******

Dr. Wandschneider (counsel for the defendant Rothenberger): Dr. Rothenberger, would you please first make some general statement about your memorandum?

Presiding Judge Brand: The exhibit number, please.

Dr. Wandschneider: We are concerned with Document NG-075, Prosecution Exhibit 27,[264] in document book 1-B, page 1. I have submitted a list to the Court on which the documents I shall mention are listed. Please begin with your statement.

Defendant Rothenberger: The memorandum is a brief summary of what I had worked out during the previous years in Hamburg. The reason for my writing such a memorandum at all, I believe, I already indicated yesterday. I had pointed out that the development in the Reich until 1942, when this memorandum was written, gave cause for growing dangers and misgivings for every jurist.[265] Furthermore, I had pointed out how the administration of justice was pushed more and more into a defensive position by the Party and the SS and how the jurists, as well as all Germans, either acquiesced in this condition and this development or even went along with it, and how the administration of justice was more and more in retreat battles. I did not want to and could not go along with this line of action. And I did not want the administration of justice again and again to be confronted with faits accomplis. The Party and the SS concerned themselves with ideas for reforms of the administration of justice and it was my opinion that the only office which was competent for this and an expert organization in the field was the administration of justice itself. And the starting point for the attempt to change the course of this development were my experiences which I had gathered in Hamburg and in England.

My conviction grew stronger and stronger to the effect that that question of the position of the judge in a state was significant not only for the administration of justice itself, but that it was a basic problem of political life in every state. Germany had always gone from one extreme to the other in politics, and now we were experiencing, during the year 1933 and the subsequent years, the extreme of a power state. And one of the causes for this was, in my conviction, that in Germany we were lacking a point of rest, an authority which due to tradition and out of its independence was in a position to influence the development critically. This impression in particular was very vivid to me from my experiences in England. Therefore, my belief that the idea of the so-called Judge-King in Germany too, if there was any chance at all, would exert an influence on the development. This memorandum represents a final warning to Hitler in order to hold him back from this development which had begun. If today I put the question to myself, whether I believed that I could convince Hitler at all from my knowledge that I have today I, of course, have to answer no to that question. According to my knowledge at that time I hoped for it and I believe that the fact alone that I undertook such an attempt at all is the best proof for this; and my belief of the time will be understood on the basis of the experiences which I had gathered in Hamburg where it had been possible by trying to swim against the current and to exert influence upon leading political personalities, that one could succeed there.

The aim of my memorandum was, in the final analysis, the same as has to be the aim of every state, namely, the rebuilding of an autonomous law which is independent of the form of government and without temporal limitation. In countries which have a tradition this may not be a problem at all, but in Germany this question had for decades been the problem, and already since 1905 leading jurists in Germany had occupied themselves with this problem again and again.

If I had described this idea in my memorandum in very dry and bare words then this memorandum as hundreds of others would immediately have been thrown into the wastepaper basket and I would have been described as a fool. Therefore, I had first to describe the means which could create the prerequisites for such a final condition and, therefore, I described the proximate aims which I wanted to reach first. I emphasized them first. In order to clarify to the Tribunal that the position of a judge in Germany is a completely different one than in England, and I believe also than in the United States, I have to go into the historical development of the profession of the German judge in a few words. I can do this more briefly since this historical development is indicated briefly in this memorandum; furthermore, because in a lengthy article which I wrote at that time, which will be submitted as an exhibit by my defense counsel, I went into this historical development in detail.

I therefore want to say here merely by a slogan that once due to the acceptance of the Roman law in Germany in the 16th Century which took place only on the continent of Europe and not in England, and furthermore caused by the development of the Prussian state where the administration of justice, as I already emphasized yesterday, was only a stepchild; that due to these two circumstances the judges’ profession played only a very modest and mediocre role. In Germany we had about 19,000 judges who belonged to the General Civil Service and who in no way differed as far as their income, or their position, or their reputation was concerned from an absolutely average civil servant.

The essential factor in this development was that the practical course of the education of a judge in Germany to this very day brought about that only persons who were merely average lawyers decided to take up the judge’s profession.

If I may be permitted to do so, I would like to mention briefly how one becomes a judge in Germany. At the age of approximately 25, one becomes assessor; at this time one decides whether one wants to become a judge. If one does decide to become a judge, one remains for a number of years and at that time it was about 5 to 8 years—a so-called assistant judge, Hilfsrichter.

This means that one exercises the functions of a judge, to be sure, but one can be discharged any day. And then in the course of years one finally achieves being appointed a judge. It happened only very rarely that a person who had been sitting as an assistant judge for a number of years was not appointed judge.

Then when one finally became a judge one received an income of about 300 marks. A fairly good skilled worker in Germany earned twice as much. Therefore, one had to lead a very modest life. One was treated as a civil servant to the extent that every year a so-called qualification or efficiency report had to be written about every judge. In other words, a report had to be made as to the qualifications of the judge. The superior of the judge had to go to the court session in order, as we expressed it, to examine the judge; that is, to examine whether the judge was able or not.

Then, the judge waited for his next promotion which played a very decisive role for him and for his family in view of his small income. There was a scale of promotions from the local court to the district court, to the district court of appeal, and finally, to the Reich Supreme Court.

This briefly described course of training thus demonstrates that the judge in a quiet existence of a civil servant was employed only as a judge all the time, and this gave cause to the leading German jurists since 1906 to do something about it. The first precursor of this idea was a certain Adickes. These jurists tried to suggest a basic alteration of this course.

Adickes was followed by an Under Secretary Muegel, and he in turn during the Weimar Republic was followed by the then Reich Minister of Justice Dr. Schiffer who today is again Minister of Justice in the Russian zone of occupation. All were of the same opinion that his position of the judge had to be changed fundamentally and that this would be possible only by a very severe reduction of the number of judges.

If the prosecution is charging me I believe even in the indictment itself with the fact that I in very clear words desired to change this condition, or suggested changing this condition, by saying that not the salve of the drug store but the knife of the surgeon, was needed then I am in good company in so saying to the extent that my predecessor for these plans was Reich Minister of Justice Dr. Schiffer who by the way is fully Jewish. He expressed the following thoughts about this problem at the time, and I quote:

“The wound should not be covered up and smeared over, it must be cut, pressed out, and scraped out. The reform in the administration of justice which we need is not an enlargement or a reconstruction but a thorough reduction.”

These plans which were discussed in Germany for 50 years, and the execution of which failed every time, I now made my own. As can be seen from the memorandum, I was confronted, above all, with the problem as to what means could be used at all to bring about this reduction in the number of judges without reducing the quality of jurisdiction. The means which I suggested were also very closely allied to those means which had been suggested for 50 years. These means were as follows: First, the concept of the justice of the peace. I believe that I do not have to go into the details of this position because, first of all, I assume that the Tribunal is very familiar with this institution of a justice of the peace; and secondly, because I said something about it in the memorandum itself; and thirdly, because I discussed it in a lengthy article which will be submitted.

The second method which I suggested, and which I also discussed in a lengthy article, which will be submitted as an exhibit is the idea of the administrator of justice [Rechtspfleger]. This is an idea which conforms with the investigations I made in England about the master, the registrar, and the clerk.[266] The aim here is clear too, namely, that the judge should act during the trial exclusively as a judge and must be relieved of the burden of all technical preparations and of the tasks which are not truly the tasks of a judge.

The third method which I suggested was a change in the structure of the German courts as a whole. Details about this too are not only in my memorandum, but in articles which will be submitted in evidence here. My aim was to introduce, in the place of the super organization of the German courts, a nonbureaucratic, simple, and clear structure of organization of the courts. In this organization of the courts the idea was decisive for me that every judge in Germany should have the same rank, but not as it had been up to now where the judge had to wait for and was dependent upon a promotion so that his activity, even subconsciously, was guided by his aim of being promoted. I wanted to do away with all titles. In my opinion, every judge deserves only the title “judge.” I was of the opinion that through these changes, the inner independence of the judge would be strengthened. The decisive factor for this inner strengthening of the judge was my suggestion to take the judges out of the general group of civil servants.

In my memorandum I attempted to explain to Hitler the basic difference between a regular civil servant and a judge.

This, of course, would have meant that the judge, from the point of view of his income, his position, and especially his reputation, would occupy an overwhelming position in Germany. I expressed this as follows and underlined it. The position of the German judge must, ideally and materially, be organized in such a way that it will appeal to the best of the future lawyers. And with this question namely the pure civil servant career of a judge, up to this time, is connected another request I made, that only a person should be appointed judge who before that had worked in another profession and had there gained experience, be it in economics, be it in another sector of the state, or above all, as an attorney. I was of the opinion that only a person of advanced age and older than was usual in Germany—I said that the minimum age should be 35—should become a judge, because a man who is very young and who has not, outside of a quiet life as a civil servant, been forced to fight and to gather experience, is not able to judge about the fate of people which is entrusted to him in the courtroom in a just and humane manner. And the last point of these suggestions for reform is the training of judges already at the university. I started with the assumption that the legal questions are very essential for the pronouncing of a sentence, but that the decisive question in every trial is the finding of the facts and the evaluation of the persons, be it the witnesses, the plaintiff, or the defendants. The training that was given at the German universities was in former times exclusively concerned with legal problems. At the university the students listened as an audience to a professor who read out his lectures on legal theory; that to be sure is necessary, but it had to be supplemented by a practical point of view. This recognition I had gained from my long experience as a tutor in Hamburg, and therefore my detailed suggestions which are mentioned in the memorandum which I later carried in Berlin. And perhaps I may be permitted later to go into them in detail.

*******

Q. I now go into the individual cases. First I put the question to you. On page 6 [section III] of your memorandum you said (NG-075, Pros. Ex. 27)[267]: “Occasionally the opinion is represented that an authoritarian state cannot bear a strong judiciary.” Whom did you mean? Who represented that point of view occasionally?

A. That is very clear that the Party and the SS represented that point of view.

Q. You meant thus your opponents in your daily life?

A. Yes.

Q. In your legal practice?

A. Yes, because I knew that these two organizations, the Party and the SS, in the course of the years exerted a very strong influence on Hitler. It was therefore decisive for me first to deal with the question as an immediate aim from the point of view to gain an influence on Hitler as a judge in order to exclude all influences of the Party and the SS. And out of that knowledge I made the requirement that between Hitler and the German judiciary there should be no intermediary; that, in other words, nobody should be allowed to influence the judge, be it a political leader, be it Bormann, be it Himmler, or any other organizations which so far had exercised a strong influence on the judge. And the second concrete requirement which I made, and which is contained in my memorandum is that the entire administration of the criminal law [Strafrechtspflege] should not be split up but its entire extent remain with the administration of justice. In connection with that are some formulations which I made in my memorandum which state that the political leaders and the official of the Gestapo cannot be judges at the same time. A corruption and hunger for power cannot be prevented in any better way than by a strong personality of a judge. And if I raised such requirements and then thought about how I could explain these thoughts to a man like Hitler, as I saw him at the time, how can I dare undertake such a step at all, the result of such an attempt was exclusively dependent upon the tactics or the methods which I employed. And therefore, in formulating my memorandum, my ideas, I made certain concessions but I always added the aim itself immediately afterward. I would like to cite two cases particularly which the indictment put into the record in that connection. First, the following sentence:

“All clamor about lawlessness, despotism, injustice, et cetera, is at present nothing but a lack of insight into the political situation.” And then I continue: “The question is solely: Is a strong judiciary incompatible with the National Socialist authoritarian state [Fuehrerstaat] per se, that is, permanently or only temporarily?” And another sentence with which I am being charged is the following: “Political situations require constant measures of opportuneness, and every stubborn resistance to it—‘on principle’ or ‘fundamental deliberation’—is senseless.” And I continue: “But one must be constantly aware of the danger that the very ‘convenient’ putting aside of a regulated administration of justice conceals the tendency of habit”—and that last phrase is underlined—“What can I do to put at the disposal of the Fuehrer a justice and judges in which he may have confidence?”

Now for me the basic problem existed—how is it possible to make these ideas of a judiciary at all compatible with the ideas of an authoritarian state, because the authoritarian state as such was a fact for me. I could not overthrow it; and to that extent, of course, there is a difference in regard to the position of the judge which I aimed at in Germany from the position of a judge in England. For me it was a fact that Hitler was the man who in Germany combined all power in his own person, but in order to make the dangers inherent in this concentration of power clear to Hitler, I emphasized two factors in particular in this memorandum.

First for one, a historical element. By referring to the Roman Empire, to the British Empire, and to other empires, I pointed out to him on the basis of history that: “Nothing brings about the self-destruction of a state more than the absence of law and a weak judiciary.” The second element with which I hoped to convince Hitler was a more nationalist element. I attempted to explain to him the picture which every human being makes himself of the position of a judge. I used the expression, “The original judge and arch judge,” and I told him that the essential characteristics of this arch judge consist of three conditions.

First, that it is a distorted picture if this judge has to ask another person what kind of a decision he should make. The independence of the judge and his freedom in issuing instruction was the most essential feature of a judge in contrast to a civil servant. The second element which I wanted to include in this picture in which I told him that he has to imagine a court on a market place was that a human being can really only imagine that there was just one judge. As soon as one has several judges in one case, one asks, “Well, who gives me a better justice?” I said that the symbol for the fact that there is only one law and one justice would be blurred. By saying so, of course, I meant that there should be as few judges as possible. The third element which I added to this picture was, and I quote: “The judge has a strong inner authority. He is the interpreter of the law who from the point of humaneness, wisdom, and experience must be superior to all other servants of the State.” The fact that Hitler, himself, was the highest legal reviewing authority in Germany was of course from my conception of the dignity and independence of the judiciary, a danger. The question exists anyhow as to whether this idea of the absolute independence of the judge is compatible with the concept of an authoritarian state.

After I was discharged, and after I had gathered the experience in Berlin during the 15 months that I was there, I absolutely denied that question. I said that those two concepts are not compatible with each other. At the time when I made this attempt, I believed that they were compatible, and that the separation of power which is necessary in every state for the purpose of controlling the people, in practice would be achieved by my program of having all influences on the judiciary eliminated.

*******

Q. Dr. Rothenberger, would you now please tell the court how your appointment to the post of State Secretary in 1942 came about? In this connection I would refer to [1964-PS, Prosecution] Exhibit 65. That is the authority dated 20 August 1942.

A. On 4 August 1942 the Reich Minister and Chief of the Reich Chancellery, Lammers, suddenly asked me to come to Berlin for the purpose of a conference. Lammers told me the Fuehrer had read my memorandum. He had liked that memorandum, and he would like to have the plans of that memorandum carried into effect. I asked Lammers specifically as to whether Hitler had given him any further reasons. He told me what had impressed Hitler was the question of the position of the judge. His opinion of the judge of the civil servant type was very low, and he thought that civil servants and judges were strangers to practical life.

In reply to my question, Lammers said to me, “Hitler is convinced that these plans must be carried out.” I then said to Lammers that I thought during the war it was altogether impossible to put into effect my plans and I would ask to be allowed to wait with carrying out my plans until the end of the war, all the more so as I myself had not yet finished my preparatory work in Hamburg. Lammers replied that Hitler counted on an early conclusion of the war, and the preparation for carrying out the reform would need some time after all, and I was to utilize that time.

*******

CROSS-EXAMINATION

*******

Mr. King: Dr. Rothenberger, I would like to come back to Prosecution Exhibit 27, which is Document NG-075. This is your memorandum to Hitler, or rather your memorandum which eventually reached Hitler, and to which you attribute your appointment to the position of State Secretary. The purpose of examining certain phrases from this memorandum is to enable me better to understand what your new program for the independence of the judiciary was. I am sure you know that memorandum much better than I do. I want to read to you several paragraphs from it. You say in one place: “Law must serve the political leadership.” Then you say in another place on page 8 of the document, “He who is striving toward a new world order cannot move in the limitation of an orderly Ministry of Justice. To accomplish such a far-reaching revolution in domestic and foreign policy it is only possible if on one hand all outmoded institutions, concepts, and habits have been done away with, if need be in a brutal manner.” Then you say still further on, “The Fuehrer is the supreme judge, theoretically the authority to pass judgment is only his.” Then you say still further on: “A judge who is in a direct relation of fealty to the Fuehrer must judge like the Fuehrer.” All of these phrases which I read appear in that memorandum and based on them, I want to ask you this and perhaps several other questions. You have repeatedly said that the purpose of your program was to establish an independence of the judiciary. However, the essence of your program, as it seems clear to me from reading your memorandum, is that the Fuehrer is the supreme judge. As you say here, theoretically the authority to pass judgment is only his. A judge in a position of direct relation of fealty to the Fuehrer must judge like the Fuehrer. Now my question to you, Dr. Rothenberger, is simply this: When you speak of the independence of the German judiciary, how do you reconcile that with these statements that the Fuehrer is the supreme judge, and that only he can actually judge, and that all judges must reflect his thinking?

Defendant Rothenberger: During my direct examination I have already tried to explain the thoughts which made me write this memorandum. It is extraordinarily difficult to do so briefly, especially to state one’s attitude only in regard to two or three sentences which are taken out of their context. Therefore, I am of the opinion that the memorandum as such should speak for itself, and that I leave it up to the Tribunal to form its judgment about the actual thoughts contained in the memorandum. And if in spite of that I may answer that question only very briefly in a concrete manner, I have to say the following: In 1942 the authoritarian state as such was a fact in Germany. That is to say, Hitler was also the highest judicial authority, and if any chance or possibility still existed to remove all the damage which had occurred during the course of years and all the burdens with which the administration of justice was loaded by the Party and by the SS—or, as we used to say at the time, on the part of the thousand little Hitlers who every day jeopardized the independence of the individual judge—under those conditions the only possibility to bring about any amelioration at all was Hitler himself. That it was impossible to convince Hitler I, and later on, everybody realized. But at the time I believed that it was possible to convince him, and I had to seize that possibility as a last chance. And if it would have been possible to convince him, then in effect the independence of the courts would have been reestablished again. For in that case this direct relationship between Hitler and the judiciary which I asked for would have been established and all other influences which burdened every judge every day would have been eliminated.

Q. Dr. Rothenberger, may I interrupt you at this point? I think that you are entirely too modest about the success of your program. If you meant what you said in your memorandum, and I assume that you did mean what you said, then isn’t it true that your program was a complete success, since the final result was that the Fuehrer became the supreme judge? Isn’t that true?

A. The fact that after only 15 months I again left my office is probably the best proof of the fact that my program was a complete failure.

Q. Dr. Rothenberger, do you distinguish between the success of your program and your own failure to get along with people in the ministry? Isn’t it possible that those two factors are separable?

A. No. A second reason also speaks for the assumption that it was a complete failure—and that is the intervention of outside offices with the activity of the judges which I wanted to prevent; this did not stop at all after this memorandum was submitted, but rather became worse. The independence of the court and the lifting of the judiciary from the civil service, which I was striving for, did not become effective at all. I request the Tribunal to tell me whether I should go into more detail in regard to this problem, which of course is a fundamental problem, or whether I should not say any more about it now.

Presiding Judge Brand: We will not interfere at this time.

Mr. King: Dr. Rothenberger, I am frankly puzzled by seemingly contradictory statements in your memorandum. Let’s go over it once more. You say, on the one hand, that you want an independent judiciary. You say, on the other, that the Fuehrer is the supreme judge, and all judges must act like the Fuehrer. Now, unless you meant that all judges must act in accordance with the wishes of the Fuehrer, your memorandum means absolutely nothing and is pure double-talk. If that isn’t what you meant—if you didn’t mean that the Fuehrer’s decisions should be the final decisions—just what do you mean by all that talk of the Fuehrer being the supreme judge?

Defendant Rothenberger: I said in my memorandum that theoretically the Fuehrer is the highest judge in Germany; I also expressed that the individual judge in his decision must be independent even in his relationship to the Fuehrer. What I attempted to achieve first was to eliminate all other influences on the judge and therefore to establish this direct connection between the Fuehrer and the judge. Therefore, my suggestion in order to say it clearly to put in place of the influence of Bormann or Himmler, the so-called “Judge of the Fuehrer,” who would influence the Fuehrer in the capacity of a judge, and would therefore not only try to direct the development in Germany into quite different channels in a legal respect but in every respect.

Q. Let me put this question to you. If, under your program, as you envisaged it in 1942, a judge came to a decision, and that decision was known not to be in accordance with the Fuehrer’s views, in your view whose opinion should have prevailed, as you intended it to work out?

A. The decision of the judge.

Q. Then what do you mean when you say the judge must judge like the Fuehrer?

A. The Fuehrer does not have the right to touch a decision made by a judge.

Q. Dr. Rothenberger, we know that that wasn’t so in practice, don’t we? We have seen instances where it didn’t work out that way, haven’t we?

A. Unfortunately, after I wrote this memorandum, especially here in this trial, and also when I was in Berlin already, I found out that the Fuehrer acted in a different way. The purpose of this memorandum, however, was merely the following: to convince the Fuehrer that the men who had influenced him so far and in that direction were wrong. My knowledge from Hamburg was not sufficient in order to know already at that time that the Fuehrer himself could not be convinced. But that is not only my own tragedy, but the tragedy of the entire German people.

Q. Did you ever consider the possibility that the Fuehrer in reading your memorandum read it literally and decided that when you said “The Fuehrer should be the supreme judge,” that you meant what you said? Did you ever consider that possibility?

A. Yes, I considered that possibility.

Q. Do you have any feeling that in practice it didn’t work out that way? In fact, the evidence adduced here at this trial tends to prove, don’t you believe, that by the end of the war the Fuehrer really became the supreme judge and interfered with all judicial decisions?

A. I saw that later, and if I had known that before, I would not have undertaken this daring attempt, because there was no hope for it from the very beginning. But at the time, I thought that as a jurist I was under an obligation to make this final attempt, because I just could not accept the conditions which existed.

Q. You knew what the Party platform was, did you not? You knew what Hitler had said in Mein Kampf, did you not?

A. About that problem, he did not say anything in a negative way in his Party platform and not in Mein Kampf either.

Q. Well, as a reasonable man, Dr. Rothenberger, you knew what his attitudes were on all of these questions, and if your program embodied having him become the supreme judge, you knew fairly well how he would judge on all these questions from your prior knowledge, did you not?

A. No. I can only emphasize again and again that as long as I saw the possibility of influencing him, I considered it my duty to make this attempt; otherwise I would have been a fool.

Q. No one denies that you did influence him, Dr. Rothenberger; the implication is that you did, and that you were completely successful.

A. I did not have any success. That is just it. Hitler could not be convinced.

Q. He became the supreme judge, did he not?

A. In effect, he interfered with the administration of justice, as we know now.

Q. All of the judges in Germany were in a position of fealty to the Fuehrer, were they not?

A. No fealty, no.

Q. What do you understand by “fealty”?

A. Dependence upon him.

Q. And you don’t think judges in Germany at the end of the war were dependent on Hitler?

A. I just wanted to prevent this fealty.

Q. You wanted to prevent it?

A. Yes.

Q. That is not what you said in your memorandum. You said in your memorandum, “A judge who is in direct relation of fealty to the Fuehrer must judge like the Fuehrer.” That doesn’t sound like you were trying to prevent it. That sounds like you were trying to induce it.

A. You do not distinguish between the dependence and fealty on the one hand, and an obvious natural relationship of trust and confidence which every German and therefore every judge too should have in the Fuehrer.

*******

Judge Harding: Dr. Rothenberger, with reference to the time you submitted your memorandum to Albrecht,[268] when did this speech of Hitler declaring himself the supreme law lord of Germany occur? What is the relationship between the time you submitted your memorandum and his speech?

Defendant Rothenberger: The Hitler speech was delivered on 26 April [1942].[269] When my memorandum reached Hitler’s hands, I cannot say.

Q. When did you submit it to Albrecht?

A. I can gather that only from the date which is below the memorandum and that is 31 March; in other words, I probably gave the memorandum to Albrecht during the month of April without knowing exactly when it was and also without knowing when Albrecht succeeded in putting it in Hitler’s hands. I don’t know that.

Q. It was submitted to Albrecht before you knew anything about this speech of 26 April?

A. Yes, that is certain.

*******

3. FURTHER DEVELOPMENTS PRINCIPALLY WHILE THIERACK WAS REICH MINISTER OF JUSTICE (AUGUST 1942–1945)

a. “Special Treatment.” Further relations with officials of the Nazi Party, the Gestapo, the SD, and the SS

TRANSLATION OF DOCUMENT NG-059

PROSECUTION EXHIBIT 38

FILE NOTE CONCERNING A CONFERENCE OF 18 SEPTEMBER 1942 AT HIMMLER’S FIELD HEADQUARTERS BETWEEN HIMMLER, REICH MINISTER OF JUSTICE THIERACK, AND DEFENDANT ROTHENBERGER

RK 13227 B 21 Sept 1942

Field Headquarters, 19 September 1942

Subject: Judicial reform

1. Remark—On 18 September 1942 following an invitation by the Reich Leader SS, Dr. Thierack, Reich Minister of Justice, and Dr. Rothenberger, State Secretary, met at the Reich Leader’s field command post. They had a discussion, lasting 5½ hours, with the Reich Leader, in which also participated on the side of the Reich Leader, SS Gruppenfuehrer Streckenbach (Security Police) and SS Obersturmbannfuehrer Bender (SS judge with the Reich Leader SS and Chief of the German Police). The results of the discussion, about which State Secretary Dr. Rothenberger expressed greatest satisfaction, are to be summarized in minutes.[270]

[Notation in ink] Afterward the Reich Minister of Justice and the Reich Leader SS had a private conversation.[271]

2. Obediently submitted to the Reich Minister.

[Initial] L [Lammers] September, 22

[Initial] F [Ficker]

3. For the files.

Justice 24

TRANSLATION OF DOCUMENT 654-PS

PROSECUTION EXHIBIT 39

MEMORANDUM OF THE REICH MINISTER OF JUSTICE ON A CONFERENCE WITH HIMMLER, 18 SEPTEMBER 1942, CONCERNING “SPECIAL TREATMENT AT THE HANDS OF THE POLICE” WHERE “JUDICIAL SENTENCES ARE NOT SEVERE ENOUGH”, THE WORKING OF “ASOCIAL ELEMENTS” TO DEATH, AND OTHER MATTERS

Discussion with Reich Leader SS Himmler on 18 September 1942 at his field headquarters in the presence of Under Secretary Dr. Rothenberger, SS Major General Streckenbach, and SS Lieutenant Colonel Bender.

1. Correction [Handwritten insertion: “Lammers informed”] by special treatment at the hands of the police [durch polizeiliche Sonderbehandlung] in cases where judicial sentences are not severe enough. On the suggestion of Reichsleiter Bormann, the following agreement was reached between the Reich Leader SS and myself:

a. On principle, the Fuehrer’s time is no longer to be burdened with these matters.

b. The Reich Minister of Justice will decide whether and when special treatment [polizeiliche Sonderbehandlung] at the hands of the police is to be applied.

c. The Reich Leader SS will send the reports which he hitherto sent to Reichsleiter Bormann, to the Reich Minister of Justice.

d. If the views of the Reich Leader SS and those of the Reich Minister of Justice agree, the final decision on the case will rest with them.

e. If their views are not in agreement, Reichsleiter Bormann will be asked for his opinion, and he will possibly inform the Fuehrer.

f. In cases where the Fuehrer’s decision on a mild sentence is sought through other channels (such as by a letter from a Gauleiter) Reichsleiter Bormann will forward the report to the Reich Minister of Justice. The case will then be decided as described above by the Reich Leader SS and the Reich Minister of Justice.

2. Delivery of asocial elements [asozialer Elemente] while serving penal sentences to the Reich Leader SS to be worked to death [zur Vernichtung durch Arbeit]. Persons under security detention, Jews, gypsies, Russians, and Ukrainians; Poles with more than 3-year sentences; and Czechs and Germans with more than 8-year sentences, will be turned over without exception, according to the decision of the Reich Minister of Justice. First of all, the worst asocial elements among those just mentioned are to be handed over. I shall inform the Fuehrer of this through Reichsleiter Bormann.[272]

3. Administration of justice by the people—This is to be carried out step by step as soon as possible, first of all in the villages and the small towns of up to about 20,000 inhabitants. It is difficult to carry it out in large towns. I shall rouse the Party particularly to cooperate in this scheme by an article in the “Hoheitstraeger.” It is evident that jurisdiction must not be permitted to lie in the hands of the Party.

4. Decrees concerning the police and the administration of justice will in future be published after having been coordinated, for example, in cases where unmarried mothers attempting to procure abortion are not prosecuted.

5. The Reich Leader SS agrees that the cancellation of sentence, even for members of the police, will remain with the Reich Minister of Justice as laid down in article 8 of the law relating to the cancellation of sentence.

6. The Reich Leader SS has given full consent to the ruling I have planned on corporal punishment ordered by the Fuehrer.

7. I refer to the law concerning asocial elements and give notification of the claims of the administration of justice, e.g., in the classification of juveniles as asocial elements and their direction.

It likewise seems to me that the actual circumstances which serve to classify a person as asocial are not laid down in the law with sufficient clarity. The Reich Leader SS is awaiting our opinion and will desist from submission of the law until then.

[Handwritten] One thing is clear—the reduction of the age of discretion has been tentatively submitted to, and approved by the competent agencies.

8. The Reich Leader SS has agreed to a clause for the Juvenile Court Law, whereby the age of discretion can be reduced to 12 years and the age of limited discretion can be extended to over 18 years.

9. SS Lieutenant Colonel Bender, on the staff of the Reich Leader SS, is appointed by the Reich Leader SS as liaison officer for matters which apparently necessitate direct liaison with the Reich Leader SS. He can be contacted at any time by teleprinter at the field headquarters of the Reich Leader SS, and will also come to Berlin once every month to report to me. SS Captain Wanniger is appointed liaison officer for other matters; he is stationed at the Reich Security Main Office.

[Handwritten] Kuemmerlein[273]

10. The Reich Leader SS points out that in the administration of punishment many more special institutions should be set up, following the principle that incorrigible criminals should be confined separately, and that those capable of improvement should be separated according to the nature of their crimes (e.g., embezzlers, thieves, and those who committed acts of violence). This is recognized as being correct.

11. The Reich Leader SS demands that the penal register be kept by the police. Arguments against this are to be examined (cancellation, aggravation, and the use of an extract from the penal register). The question is to be further discussed with SS Major General Streckenbach.

12. The Reich Leader SS points out SS First Lieutenant, Judge at the Reich Supreme Court, Altstoetter, at present on active service as a major, as being reliable and also District Court President Stepp; he considers Attorney General Jung in Dresden unreliable.

13. Finally, the Reich Leader SS broaches the subject of the office of the public prosecutor and its transfer to the police. I rejected it flatly. There was no further discussion of this subject.

14. It is agreed that in consideration of the intended aims of the government for the clearing up of the eastern problems in future Jews, Poles, gypsies, Russians, and Ukrainians are no longer to be tried by the ordinary courts as far as punishable offenses are concerned, but are to be dealt with by the Reich Leader SS. This does not apply to civil lawsuits, nor to Poles whose names are registered for or entered in the lists of ethnic Germans.

[Initial] Th [Thierack]

TRANSLATION OF DOCUMENT NG-857

PROSECUTION EXHIBIT 434

LETTER FROM THIERACK TO THE PRESIDENT OF THE REICH SUPREME COURT, 29 SEPTEMBER 1943, PROPOSING SS GENERALS OHLENDORF AND CERFF AS GUEST SPEAKERS[274]

Berlin, 29 September 1943

The Reich Ministry of Justice

T 712, M I a

To: The President of the Supreme Court of the Reich, Dr. Bumke

1.

Leipzig C 1

Reichsgerichtsplatz 1

[Stamp] Out: 29 September 1943

[Handwritten initials illegible]

Dear Dr. Bumke,

I would appreciate it if, together with the Chief Public Prosecutor of the Reich, you would invite SS Brigadefuehrer Ohlendorf and SS Brigadefuehrer Cerff to speak before the members of the Supreme Court and before the public prosecution of the Reich. This plan has been suggested by the Reich Leader SS, and I welcome it. The two Brigadefuehrers can both be reached c/o the Reich Security Main Office in Berlin.

Heil Hitler!

Yours obediently

[Typed] Dr. Thierack

2. After dispatch to State Secretary for information.

[Initials illegible]

3. To be returned to ministerial office.

TRANSLATION OF DOCUMENT NG-219

PROSECUTION EXHIBIT 42

REPORT FROM THE GENERAL PUBLIC PROSECUTOR IN JENA TO THE REICH MINISTRY OF JUSTICE, 30 SEPTEMBER 1943, CONCERNING COOPERATION OF JUSTICE AUTHORITIES WITH THE SD AND INTEROFFICE MEMORANDUMS PERTAINING THERETO[275]

REICH MINISTRY OF JUSTICE

Business Office a-3

Subject: Cooperation of the justice authorities with the Security Service of the Reich Leader SS.

IV a 2745.43 g-sheet No. 1

[Stamp] Secret

Copy of an extract from the report regarding the situation by the general public prosecutor in Jena of 30 September 1943

[Handwritten] 4606/1-a-4, 1512/42

The reciprocity contained in the executive order of the Reich Ministry of Justice concerning the cooperation of the justice authorities with the SD (Security Service) of the Reich Leader SS [Himmler] of 3 August 1942—[published in] German Justice, page 521—is only very conditional. The [Ministry of] Justice works openly, and the Security Service secretly. So, as a general rule the [Ministry of] Justice is not at all informed of the work which is being carried out by the Security Service and is therefore also not in the position to request information. It is usually accidentally informed about such investigations. So it was in the case of Greiz, which was submitted to the Minister and during which an inspector of justice was asked about the attitude in the judicial circles regarding the judges’ letters. I furthermore remember a case of Sonneberg from which the conclusion could be drawn that the Security Service made investigations regarding the protection of war marriages through the courts.

Berlin, 6 October 1943

Mr. MD I,

Mr. MD IV

For information. The Minister requests a report in this matter

[Illegible handwritten notes]

[Handwritten notes]

Mr. [?] Malzan

Mr. [?] Kremer

For information.

Are you informed about the above-mentioned cases of Greiz and Sonneberg?

[Signature] Mielke 7 October

None of the cases are known to me.

[Initial] M 7 October

Nor to me!

[Initial] K 8 October

Mr. [illegible title] Kuemmerlein

Are the above-mentioned details known to you? I would be grateful if you could inform me about the whereabouts of the above-mentioned documents.

[Signed] Mielke 8 October

[Marginal note] The cases are not known to me.

8 October

[Signed] Max Lechner

To Oberregierungsrat Mielke:

The documents have been thoroughly searched for in the Office of the Ministry. None of cases mentioned are known.

[Signature] Beitz 25 October

[Marginal note] To Oberregierungsrat Mielke. Oberregierungsrat Bender is the coordinator of the district Jena Department I (higher level, civil service). Doctor S. P. N. Friedrich is the deputy coordinator. The cases mentioned are not known to me. (I am an assistant to the general officials.)

[Signature illegible]

26 October

To Mr. Reinecke:

I would appreciate information on the coordinators in Department I.

[Signature] Mielke

25 October

Registered

To Ministerialdirector Letz:

I would be grateful to you for information as to whether you are informed about the cases of Greiz and Sonneberg. The peculiar method of not answering special questions is generally known throughout the entire Reich. It is unbearable for people with character and it is an impossibility for decent people or members of the Party. In my opinion it would come to an end at once if one is quite candid and would tell them the whole truth about the P.K. I personally must persist in the demand for complete equality and the corresponding etiquette. I have just given orders to the Oberregierungsrat [illegible name] to raise objections against certain abuses in a suitable manner at the Reich Security Main Office.

[Signature] Vollmer 27 October

[Marginal note] to IV a 2745/43 g

[Handwritten notes]

To be submitted first to President Dr. Friedrich.

Are you acquainted with these cases (Greiz and Sonneberg)? Not known to me.

[Signed] Dr. Friedrich

28 October

[Marginal note] to IV a 2745/43 g.

Sealed!

To Ministerialdirector Dr. Vollmer:

The cases of Greiz and Sonneberg have not been known in Department I. Moreover, I know from documents, which the minister produces from time to time out of his private files, that the Security Service takes up special problems of the administration of justice with thoroughness and makes summarized situation reports about them. As far as I am informed, a member of the Security Service is attached to each judicial authority. This member is obliged to give information under the seal of secrecy. The procedure is secret and the person who gives the information is not named. In this way we get, so to say, anonymous reports. Reasons given for this procedure are of State political interest. As long as direct interests of the State security are concerned, nothing can be said against it, especially in wartime. Moreover, as far as for instance evaluation of personnel of less important nature, questions concerning the judiciary or general “reports on public opinion” are concerned, I do not regard the anonymity as harmless. The danger exists, that people will be trained to snoop around, that unjustified denunciations will occur and that an atmosphere of mistrust will be created. There can indeed be no question of cooperation between the [Ministry of] Justice and the Security Service curing such a procedure. On the other hand the minister may be interested to know how the [Ministry of] Justice is criticized outside the official channels of appeals. In any case the secret, one-sided Security Service reports cannot be a basis for the establishment of facts and certain conclusions. They may provide hints.

Berlin, 29 October 1943

[Signature] Letz

[Marginal note] to IVa 2745/43g

PARTIAL TRANSLATION OF DOCUMENT NG-327

PROSECUTION EXHIBIT 359

LETTER FROM LAMMERS TO THIERACK, 23 OCTOBER 1942, STATING THAT THE OPINION OF THE GAULEITER HAS TO ACCOMPANY CLEMENCY CASES SUBMITTED TO HITLER

The Reich Minister and Chief of the Reich Chancellery,

Rk. 779 B g

[Stamp]

Reich Ministry of Justice

25 October 1942

Berlin W 8, 23 October 1942

Voss Strasse 6 at present,

Field Headquarters

SECRET

To the Reich Minister of Justice, Dr. Thierack

[Handwritten] has been submitted

[Signed] Ebersberg

Subject: Consultation of Gauleiter in clemency cases

Dear Mr. Thierack!

The Fuehrer ordered that in future in all cases submitted to him for clemency, the expression of opinion by the Gauleiter[276] has to be obtained. Details should be learned from the attached copy of my letter to the Minister of State and Chief of the Presidential Chancellery of the Fuehrer and Reich Chancellor, whom I requested to contact you.

Heil Hitler!

Very truly yours,

[Signed] Dr. Lammers

[Handwritten] taken care of IVa 1729/42g-1728/42g

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[277]

DIRECT EXAMINATION

*******

Dr. Wandschneider (counsel for defendant Rothenberger): We are now coming to a group of problems which were set down in Exhibits 38 and 39.[278] The exhibits are concerned with a discussion between Himmler and Thierack, in the presence of Dr. Rothenberger, as is said at the beginning of the transcript of 18 September. Dr. Rothenberger, would you tell us, please, who was your main opponent outside the administration of justice?

Defendant Rothenberger: Himmler, as the Reich Leader SS. That he was my opponent I had known for many years. I gathered that on the one hand from the fact that at public demonstrations I had repeatedly in view against all measures which had been taken against the administration of justice at the instigation of Himmler.

In particular, I remind you of the measures described in the Schwarze Korps against the German judges. I remind you of his measures which amounted to a correction of sentences. It was natural that the view which I had expressed in public as to what those measures would lead to, that Himmler through the SD service would have been informed of that. For me it was a matter of course, that Himmler would have been informed of the contents of my memorandum to Hitler, and that was proved right during the discussion later on. About that discussion Himmler knew that I had warned Hitler of the development of the administration of justice and of the development of the Reich as a whole, a development towards becoming a pure power state.

In particular Himmler knew from the memorandum[279] that I had requested that the entire administration of penal justice was to lie exclusively in the hands of the judiciary. That that constituted a camouflaged attack on the administration of justice by the Gestapo was naturally obvious to Himmler. That view of mine, namely, that Himmler for that reason harbored great distrust toward me, was confirmed to me not in the course of the discussion, but it was confirmed to me by the results of that discussion; and it was confirmed without any doubt. I saw Himmler once in my life and for the following reason:

He had sent out an invitation. Thierack said to me that I was to go along with him because it was a first official visit. We had only just assumed office and this was supposed to be my first official call on Himmler. We had not heard before what points were to be discussed there. One could only rely on suppositions. My supposition was that the problems which for years had been an object of dispute between the administration of justice and the police would probably be mentioned in the course of this discussion. Among those problems there were, in particular, the following questions:

On the one hand, the question of the transfer of the prosecution to the police, which has been mentioned here a few times, but the significance of which, I believe requires some explanation. I mean, it is significant for the entire set of proceedings and trials in Germany. The German prosecution at this trial here has repeatedly been described as the most objective authority in the world. Naturally, that was an exaggerated expression. But contrary to the Anglo-American procedure, what is correct about that statement is that the public prosecutor, because he has to deal with all elements that speak in favor of the defendant as well, constitutes a very far-reaching protective element for the defendant as well.

This is therefore for the entire method of proceedings, the position of the judge and in particular also the position of the defense counsel—which for that reason, too, is an entirely different position than it is under Anglo-American procedure—of essential importance.

If Himmler would have gotten the prosecution into his hands, which he had wanted to do for years, that agency which hitherto had been objective would have been in Himmler’s hands. Himmler’s struggle against the administration of justice would have been carried into the courtroom. That explains my great misgivings against that demand of Himmler’s. For this reason, as far as I knew this problem would become acute, I considered it my duty, although formally it did not concern me, but because it was a basic question for the reputation of the judiciary as such, I tried with all means at my disposal to persuade Thierack before the discussions that on no account was he to give way on that point. I had all the more cause to do so because I had the feeling that Thierack wavered on that point. I did not know, I only heard that here, that actually on the occasion of the Elias case which has been mentioned here, in Czechoslovakia he in a certain way had already committed himself. I made particular use of this factor without Thierack—I told him that if the prosecution would no longer be under the administration of justice, you yourself, who directs the penal administration of justice, will lose the ground under your feet. What I said was, “you yourself will saw off the branch on which you are sitting.” That factor evidently did have some effect upon him; it evidently succeeded.

The second problem which would probably be broached by Himmler was the question of the community law concerning asocials, which has already been mentioned. I shall refer to that briefly later, because that problem was discussed during the conference.

There were two further points which I thought would be broached. They were old hobby horses of my own. I am referring to the question of the Schwarze Korps and that of the correction of sentences. Thierack himself said to me before the conference on the way there—we went there together—“Will you keep in the background at the conference, please, because, on the one hand, the problems will probably concern matters which do not affect you, that is to say, matters of the administration of penal justice; and furthermore, I do not want an argument to arise between us again, which is quite apparent to outsiders, such as occurred during our visit to Lammers a month ago.”

Q. What happened at the conference itself?

A. It is nearly 5 years ago now since that conference took place, but as it was very impressive I believe I can remember it fairly well. It was not a formal meeting, since only a very small circle of people attended. It was, in fact, an informal conversation, interrupted by a supper. Himmler was the main speaker. I noticed this manner of speaking was very much like that of Hitler’s.

Presiding Judge Brand: Wouldn’t it be possible for you to concentrate a little more on the actual material features of the conversation?

Defendant Rothenberger: Yes.

Q. We don’t care how he spoke, or about his manner.

A. Yes, Your Honor.

To begin with, he made general remarks about the war situation, of which he took a favorable view. I do not remember now the sequence of the individual points which are mentioned in the minutes, but I do believe that he then immediately went over to the subject of the transfer of prisoners, that is to say, the transfer from the administration of justice to the police. That was a problem which was entirely new to me. He said that through his organizations he had had the facts established that the prisoners under the administration of justice, on the one hand, were badly overcrowded, and furthermore that in some cases at those prisons, work was still being performed which was not essential to the war effort. He mentioned handicraft and pasting together of paper bags. He himself, on the other hand, had constructed large armament works. He was of the opinion that at a time when every German, be it the soldier at the front or the man or woman in the homeland, was working for the war efforts, the prisoners too, in one form or another, should make their contribution toward the war effort.

When he had explained that to us in great detail, it seemed to me that Thierack’s attitude on that point was not altogether clear. On the contrary, I had the impression that Thierack had understanding for that request which Himmler had put forward.

No details were discussed as to what type of prisoner Himmler wanted transferred, but it was said in a general way that only prisoners with long terms would be considered for such transfer, since prisoners with short terms would have to be discharged again at an early date.

I myself kept silent on that point to begin with, because for one thing I did not feel certain on that question, and secondly, because Thierack had especially asked me to hold back. However, in the course of our talk—I do not remember whether it was immediately or whether it was later on—the conversation turned to the subject of the general relations between the administration of justice and the police. That conversation dealt mainly with the old arguments concerning the Schwarze Korps and Himmler’s correction of sentences. Himmler was of the opinion that the administration of justice had failed in various instances, and for that reason he had been compelled to intervene. Since Thierack, on that point too, did not take up a clear attitude in favor of the administration of justice, I considered it my duty to interfere. Naturally, I was cautious in my manner, but I was clear as far as the matter itself was concerned. I had just been appointed by Hitler and had the belief that Hitler was backing up my plans. I said that the problem of the police and the administration of justice could not be considered just from the point of view of one single sentence which might have been correct or incorrect, but that one must regard that problem from the general point of view of the reputation of the judiciary. I said that the reputation of the State as such was dependent upon the reputation of the judiciary.

In speaking of these things I referred to my memorandum and my opinion that Hitler had approved my memorandum on those points, too. I said that from that point of view I, too, considered it incorrect for the administration of justice to transfer prisoners to the police. If the prisoners were not being put to sufficient use for the war effort, the administration of justice itself would have to see to it that sufficient use would be made of such prisoners.

Himmler listened to my remarks with comparative calm. It seemed to me that he had understanding for what I was saying.

He said that he had never heard of these problems from that angle, and he said that in future he would instruct the Schwarze Korps to refrain from attacking the administration of justice; he would also stop the police from intervening in the case of individual sentences.

These two subjects had thus been concluded. The question of the transfer of prisoners seemed to me to remain undecided. Besides that point a few other problems were discussed, for example, the question of the asocial law.

Q. I wonder, would you for my convenience tell me the technical name of the asocial law, either by date or in any other way? What law are you referring to as the asocial law?

A. May it please the Court, that is not a law in the sense of ever having become a law. It is merely a draft which dealt with the question as to whether the police were to be allowed to arrest asocial elements. Have I made myself clear, Your Honor?

Q. In saying “the asocial law,” you didn’t mean that there was any law at all?

A. No, no, I did not. No, it never became law. I will explain that in a moment. I was familiar with that problem from my time in Hamburg. Yesterday I explained, as is evident from Document NG-387, Prosecution Exhibit 400,[280] that I had put forward the proposal that if such a law were to be issued at all, a judicial authority would have to be set up in order to decide as to who, in fact, was an asocial element. That same question was brought to my attention immediately when I assumed office in Berlin. I believe it was in my first or second week there when a Ministerialdirigent Rietsch came to see me. He said to me—Mr. Under Secretary, you must help us. Minister Thierack is prepared to agree to that law, and that would be impossible, because that law would give to the police alone the right to determine who is an asocial element. Since a large number of the criminal elements are also asocial elements, such a regulation, that is to say if the police were to have the right to determine who was asocial, that would mean that the penal courts would be completely eliminated. Together with Rietsch, before the conference at Himmler’s, I had had a lengthy conversation with Thierack on the matter, because this problem again constituted a fundamental question of the administration of justice. Thierack did not give his approval, even when Himmler broached that question at the conference and asked Thierack to give his consent, Thierack remained firm. That is evident from item No. 7 of the document. As I heard later on, negotiations were held between the Referenten, and the law never became a law in effect, at least not during my period of office, and I do not believe that it became effective afterwards. The further point which was discussed was the problem which I think has been discussed in almost too much detail here, that of the justice of the peace. It was astonishing and surprising to me that Himmler had any interest at all in that problem. He was fairly well informed about the historical foundations both abroad and in Germany, and it was equally surprising to me that he concurred in my opinion—I talked about that subject, my opinion being that the office of the justice of the peace was not to lie in the hands of the Party. That is evident from item No. 3 of the document.

Various other questions were discussed at length, questions which were largely of a technical nature, partly anyhow. I do not remember the order in which these questions came up for discussion. I am merely mentioning the question of age in regard to responsibility before the law [Strafmuendigkeit]. I believe that Himmler mentioned a few cases where children of only 13 years of age had committed punishable acts and where he was of the opinion that one had to punish them, whereas under the previously existing legislation a child only becomes punishable at the age of 14. Questions concerning the penal register were then discussed, concerning ordinances to be issued jointly by the administration of justice and the police. I do not remember for certain whether punishment by flogging was discussed in my presence. I think it is possible. I am certain that while I was there the question of the transfer of the prosecution was not touched upon at all. This document contains a reference under 13 where Thierack says “I flatly rejected Himmler’s demand for the transfer of the prosecution to the police.”

Dr. Wandschneider: Dr. Rothenberger, may I interrupt you before we continue? When you spoke about the correction of sentences you said that the correction of sentences, according to Himmler’s remarks, was to be stopped. The document of 18 September 1942 itself shows that beyond that a number of details were laid down as to what procedure was to be adopted in correcting sentences, concerning the relation between Himmler and Thierack and with the corresponding participation of Bormann. Were such particulars discussed in your presence?

Defendant Rothenberger: No. Himmler merely emphasized that a unilateral interference such as has occurred hitherto would no longer be permitted by him.

Q. Would you continue, please?

A. The last point which is contained in the document was also certainly not discussed at all. I am referring to the question of the transfer of the penal administration of justice concerning Jews, Poles, gypsies, Russians, and Ukrainians.

Q. Dr. Rothenberger, you know the transcript of 18 September, those minutes where it says that Himmler and Thierack led the discussion and that you were present. How can you explain it that those points which, according to you, were not mentioned in your presence must have been kept secret from you or deliberately cannot have been discussed in your presence?

A. The file note which Thierack wrote personally I saw for the first time here.[281] Today it is altogether clear to me how that file note came about.

Added to the file note in NG-059[282] is a notation signed by Ficker, Reich Cabinet Counsellor.

That notation confirms that following the conference which I attended, the Reich Minister of Justice and Reich Leader SS, I quote, “had a private conversation.” When I think it over as to why such a talk between the two alone took place, today I realize fully that Himmler and Thierack quite deliberately excluded me and misled me, in particular, concerning the most delicate points.

What their motives were, I naturally can’t say but in accordance with all the previous and subsequent events, immediately after the conference, I am bound to assume that Himmler and Thierack did not exactly regard me as their ally in such plans, and that during the first conference which I attended, they quite deliberately created the impression that they were making certain concessions. As to whether they, themselves, were not certain of themselves, as to whether Hitler really had a certain amount of understanding for my plans I cannot tell of course; but as far as the early period is concerned, that is possible. And now Thierack, I do not know when, for it cannot be seen from the file note (654-PS, Pros. Ex. 39), which bears no date, summarized the results of both discussions; that is to say, the conference which I attended and the following conversation between Himmler and Thierack alone, in this file note, without differentiating between them. It seems that a part of this file note was added by him only at a later time. I gather so from the original document, according to which some of the document was added later on by a different typewriter. That part concerns the last item, point 14, the question of the transfer of the administration of penal justice over Jews and Poles.

Q. Dr. Rothenberger, may I put another question to you in this connection? If I understood you rightly, you wanted to tell us that Thierack and Himmler were uncertain toward you and did not quite know where they stood with you. To what do you attribute that feeling that they had, that they did not quite know where they stood with you?

A. Mainly I think that feeling was caused by my memorandum. I assumed that Himmler knew that memorandum and that Himmler was not certain whether Hitler was really supporting the ideas of that memorandum.

Q. Did the unusual way in which you came to Hitler play any part in that?

A. No doubt, for Himmler and Thierack both knew that I had been appointed by Hitler himself in an unusual manner.

Presiding Judge Brand: You have covered that.

Dr. Wandschneider: Thank you. May it please the Tribunal, may I continue with my examination?

Presiding Judge Brand: Yes.

Dr. Wandschneider: What was your first impression after the conference?

Defendant Rothenberger: My first impression after the conference was favorable. Immediately after the conference, I told Reich Cabinet Councilor Ficker so. That too can be seen from Document NG-059, Prosecution Exhibit 38. I believed that that favorable impression was due to the fact that in regard to the main problems of the administration of justice, Himmler had not prevailed with his view. He had not asked to have the prosecution transferred. Concerning the correction of sentences and that of the Schwarze Korps, he had given assurances, in the problem of the asocial law, too, he had withdrawn his demand, and the question of the transfer of prisoners had at any rate remained open.

After the conference, the next morning in fact, I left by myself. Thierack remained behind—I do not know for how long he stayed. I went to Hamburg via Berlin to join my family in Hamburg, and there, too, I talked to a friend in a very positive way about this very important meeting which had concerned the administration of justice. When I returned to Berlin, the great disappointment began. Already after a few days, there was among the files which lay on my desk, a paper. That, too, was a file note by Thierack. It was a much briefer file note than the one here. As I remember it now, it concerned a conference with Goebbels. That file note indicated, in what form I do not remember now, that Goebbels had voiced to Thierack the idea of the extermination through work. That file note, was not addressed to me. It must have come into my possession by mistake.

When I read it, I could hardly comprehend that idea to start with. I could not comprehend what was meant by it. Feeling upset, I went upstairs to see Thierack immediately and asked him what it was all about. Thierack said to me with a certain amount of arrogance and condescension, “Do not get excited. It is correct that I talked to Himmler alone afterwards, that was the first time I heard of it, and in the course of that talk, this question, too, was discussed by Himmler and myself. But I rejected that demand on the part of Himmler with determination. I did that for humane reasons alone, and Himmler too understood that at the time everybody in Germany was needed.”

During that talk, Thierack took a paper out of his desk, and on this paper—which I did not read myself, but I could see it—Thierack wrote in the margin so that I could see it, in his green pencil, “Settled” or “Rejected.” I believe it was settled, as I can see now. Evidently, he wanted to confirm to me his assertion that this idea of extermination by work had been dropped by writing down that remark. I had only been in office for 3 weeks at that time, and I was still so innocent that I did not realize that those men might really carry out such an idea, and that they were deluding me.

Q. Dr. Rothenberger, in connection with this group of questions, a number of documents have been submitted about which you will have to give us your views. I now want to enumerate the various documents and to ask you to give us your views.

*******

We are now going to deal with Exhibit 264,[283] document book 4-A, page 42, that is a letter from the Reich Ministry of Justice to the general prosecutors, dated 22 October 1942, it is signed by Crohne, and it was connected with the carrying out of the agreement of September 1942.

A. I never saw the letter either, which was natural, because it was a problem which concerned penal law and the administration of penalties. Such matters were not submitted to me, on principle.

Q. As Exhibit 268,[284] the prosecution submitted a document which was signed by Dr. Eichler, and is dated 1 April 1943; it concerns the transfer of Jews, Poles, etc., into concentration camp. Did you ever hear of such a letter?

A. No, I never saw that letter either.

Q. Finally, a gruesome letter from Thierack to Bormann, dated 13 October 1942, plays a part. That letter was read into the record and was not submitted as a separate document—if I remember correctly. The court knows it, did you ever see this letter from Thierack of 13 October 1942?[285]

A. No, I do not know that letter either.

*******

Q. And then at the end of 1943, how did your leaving the Reich Ministry of Justice come about?

A. Yesterday I briefly mentioned the fact that as early as in April of 1943, after Thierack had tried to transfer me to the Reich Supreme Court in January but had stated that the time was not yet ripe for that, at that time I offered him my resignation which he rejected. Furthermore, I had mentioned that at the same time that did not keep him from starting investigation proceedings against me the same time of that year 1943 without my knowledge for the allegedly illegal procurement of furniture. That Thierack was primarily interested in getting rid of me in a manner which would give the impression to the outside world that I was being dishonorably discharged is proved by what I shall say briefly about my finally leaving the office.

Yesterday I also mentioned the fact that Thierack, as early as September 1942, kept my book for about 3 months. The German Judge—

Presiding Judge Brand: You need not repeat what you said yesterday; we remember it. Go on to something new.

Defendant Rothenberger: Yes. After Thierack had finally turned over this manuscript to the Party Chancellery and after it had been examined there for about 6 months, about in August or September—I am not quite sure about that date any more—of 1943 an SD report was received in the Ministry. Thierack put that SD report to me, and he told me it could be seen from that SD report that a plagiarism was contained in that book. That book contained a short historical review of the position of the judge in the old Germanic and Franconian era, and several sentences concerning that era were allegedly taken from a book by a Professor Fehr. Professor Fehr, Thierack told me, was an emigree, who lived in Switzerland, and a democrat; and there was concern that one day the London broadcasting station might broadcast the information that the German reform of the administration of justice really emanated from an emigree who was a democrat and lived in Switzerland. He said that was extremely dangerous from the point of view of foreign policy, and that I had to clear it up.

I did not know the name “Fehr” at that time at all. As can be seen from the preface, a considerable number of my assistants in Hamburg had participated in the work on this book, and one of these assistants dealt with the historical part of the book. One year before, when no mention was made about the possibility of publishing that book, he had compiled that historical data for me, which I needed for a lecture that I was supposed to give in the Reich Ministry of Justice. The other day I stated that in August of 1941 I gave a lecture in the Reich Ministry of Justice about the segregation of the profession of judges from the usual civil servant class. That historical compilation was made for that purpose.

I had the matter clarified by that assistant, Dr. Brueckmann, and he said yes, that was correct, he had used several sentences from a book by Professor Fehr compiling the data, without having any opportunity at that time to know that it would lead to publication.

Thereupon, I told Thierack what the causes for that oversight had been. At no time did anybody, not even Thierack, make the assertion that there was any guilt on anyone’s part. But I told him the man who could be interested to see that some sentences of a general historic content such as could be found in any book, that such sentences would be also contained in my book would only be Professor Fehr. Therefore, I wrote a letter to Professor Fehr, explained it to him, and asked him if that should be necessary for an interview; and before that conference took place—it was intended to take place in January 1944—Thierack succeeded in having me dismissed, and that in the following manner: I was just on a duty trip at the beginning of December 1943. During that time he went to Lammers and reported to Lammers that an application had been made by professors of the city of Hamburg who, he said, had complained that I was still in office. That in other words, would have been colleagues of mine, because I myself was a professor at Hamburg at one time. He added that from the point of view of foreign policy one could no longer maintain the responsibility of keeping me in office, and therefore, he asked that Lammers should suggest my dismissal to Hitler. I was informed about that at the end of December 1943, that is to say, before that conference with Fehr was to take place. At the end of 1943 I was suddenly called on the telephone—I was at that time with my family, it was during Christmas—[and told] that I had to come to Berlin immediately and take Thierack’s place temporarily because he wanted to join his wife. Thierack called me into his office and told me, “Hitler has directed that you be dismissed.” Upon my question, “Why,” he answered that the matter with Fehr had gone so far on account of the application made by the professors from Hamburg that it was no longer bearable to keep me. I told him that he himself didn’t believe that, and I wanted to leave the room. Thereupon suddenly he became very friendly and soft and told me, why, of course the matter of that book was just the external pretense, but first of all, in the course of this year and a quarter, I had never succeeded in establishing good relations with the Party Chancellery and the SS. Moreover he said I was accused of having taken part in the funeral of Guertner, which I didn’t understand at all, how anybody could be so stupid to charge one with having attended the funeral of an extremely decent former Reich Minister of Justice. I replied if these are the real reasons, then I was proud of it. Before I left him he again lied to me by saying, yes, he would have liked very much to nominate me for the position of president of the Reich Supreme Court, but Lammers had raised opposition against that. Then a few days later I saw Lammers in order to inquire about the background of the story. Lammers told me just the opposite. It was he, he said, who tried to offer some office of some kind to me, but Thierack had been the person who rejected that. Through these circumstances the separation which had been pending for a long time actually took place, and without a new office, without gratitude, and without any compensation of any kind I left. And in accordance with that was the publication in all German newspapers where the following notice appeared, and I quote: “Change of office in the Reich Ministry of Justice. Upon the suggestion made by the Reich Minister of Justice the Fuehrer, after effecting the transfer of Under Secretary Rothenberger, into Wartestand [Civil Service inactive status] has appointed Ministerialdirektor Klemm, who up to that time was in the Party Chancellery, Under Secretary in the Ministry of Justice.”

*******

b. Judges’ Letters Written by Thierack and Defendant Klemm

TRANSLATION OF DOCUMENT NG-500

PROSECUTION EXHIBIT 90

CIRCULAR LETTER FROM THIERACK TO JUDGES, 7 SEPTEMBER 1942, EXPLAINING THE ESTABLISHMENT AND FUNCTION OF THE JUDGES’ LETTERS

The Reich Minister of Justice

3110/2-IVa 4 1902

Berlin W 8, 7 September 1942

Wilhelmstrasse 65

Telephone: 110044

Long Distance: 116516

To:

1. The Presidents of the Reich Supreme Court and People’s Court

2. The Presidents of the District Courts of Appeal (except of Prague)

3. The Presidents of the District Courts (with extra copies for the local courts)

For information:

1. The Chief Reich Prosecutor at the Reich Supreme Court and People’s Court

2. The Attorneys General

3. The Chief Public Prosecutors

Subject: Judges’ Letters

I will, can, and must not tell the judge who is called to preside over a trial, how to decide an individual case. The judge must remain independent in order to be able to carry the full personal responsibility for his decisions. I therefore cannot order him to use a certain legal interpretation but only try to convince him how he can help the nation by correcting or regulating with the aid of the law a life that has gotten into disorder or is ripe to be brought into order.

In this respect the profession of the judge and that of the physician are akin—he gives aid to the compatriot who asks him for help and thus prevents damage to the community. The judge, like a physician, must be able to eliminate the seat of a disease or perform operations like a surgeon.

This conception of the duties of the administration of justice has already been accepted by the German jurists to a great extent. Its practical conclusions, however, have not been fully applied yet in the field of the administration of justice.

To aid the judge in fulfilling his high duty in the life of our people, I have decided to publish the “Judges’ Letters.” They shall be distributed to all German judges and public prosecutors. These judges’ letters will contain decisions, which I consider to be especially worthwhile mentioning on account of result or argumentation. With these decisions I intend to show how a better decision could or should have been found; on the other hand good, and for the national community important, decisions shall be cited as examples.

The judges’ letters are not meant to create a new casuistry, which would lead to a further ossification of the administration of justice and to a guardianship over the judges. They are rather aimed at telling how judicial authorities think National Socialist justice should be applied and thereby give the judge the inner security and freedom to come to the right decision.

The contents of these letters are confidential; the chief of an office shall keep them personally, and let every judge and public prosecutor take notice of them against receipt.

For the publication of the Judges’ Letters the collaboration of all the judges and prosecutors is needed. I expect suitable decisions from all branches of justice to be presented to me for publication. When published, neither the judge nor the tribunal pronouncing the sentence will be named.

I am convinced that the Judges’ Letters will help essentially to adjust the administration of justice uniformly along National Socialist lines.

[Typed] [Signed] Dr. Thierack

[Certified]: [Signed] Massmund

As Chief Secretary of the Ministerial Chancery

[Stamp]

The Reich Ministry of Justice

PARTIAL TRANSLATION OF DOCUMENT NG-298

PROSECUTION EXHIBIT 81

THE FIRST ISSUE OF THE JUDGES’ LETTERS, 1 OCTOBER 1942

RICHTERBRIEFE [Judges’ Letters] Communications of the Reich Minister of Justice, Issue No. 1, 1 October 1942

Confidential

German Judges

According to ancient Germanic interpretation of the law, the leader of the nation has always been its supreme judge. When the leader therefore invests another person with the authority of a judge, this means that the latter not only derives his judicial power from the leader and is responsible to him, but also that leadership and judgeship have related characters.

The judge is therefore also the guardian of national self-preservation. He is the protector of the values of the nation and helps in the annihilation of the unworthy. He regulates those functions of life, which are considered diseases in the body of the nation. Justices vested with absolute authority are essential for maintaining a true national community.

On account of this task, the judge is the direct assistant of the leadership of the State. This position renders him prominent, but also shows the limits of his tasks which cannot, as a liberal doctrine assumed, lie in the supervision of the leadership of the State. For, if a state does not have an organization which grants the leadership to the best, the administration of justice cannot substitute this selection by its activity.

The judge is the embodiment of the wide-awake conscience of the nation. Any state is bound to fall if honesty and common sense do not form the standard of values in the national community. It is the task of the judge to see that this is done. In rendering judgment he must always show the people his adherence to this rule.

These tasks place the judge in the center of the administration of justice. They show the profession of judges as one of the earliest professions—to be compared with that of the farmer and the soldier. These tasks can only be fulfilled by men who are mentally free and honest, and who possess a high sense of responsibility, shouldering this responsibility gladly, and conforming by their inner and outer bearing to the picture of a judge as the German people see it. The judges must therefore become a corps of judges, which represent an elite of the nation. But this must not lead to the judge keeping aloof from the people; on the contrary he has to live with and among his people and know its needs and sorrows in order to be able to help.

Such a corps of judges will not slavishly cling to the letter of the law. It will not anxiously look for cover by the law, but aware of its responsibility, it will find within the bounds of the law a decision which shall be the best guide for the life of the community.

The war for instance makes demands on a judge, which are totally different from those in quiet peace times. The judge has to adapt himself to these changes. He can only do this when he knows the intentions and aims of the State leadership. The judge must therefore always be in close contact with the leadership of the State. This is the only way to guarantee the performance of his high task for the good of the community, and it prevents the administration of justice—detached from its real problems in the life of the people—from being considered as a body for its own ends. From this ensues the meaning and necessity for the guidance of the administration of justice.

Guidance in the administration of justice does not mean to impose upon the judges a certain view of the law. The judge must remain independent, otherwise he will no longer be judge. But the State can and must lay down the general line of policy, which judges must follow, if the administration of justice shall fulfill its obligations.

I have therefore decided to issue Richterbriefe which will be sent to all German judges and public prosecutors. These Judges’ Letters shall mainly contain decisions which I deem to be especially worthy of interest, because of their findings or argumentation. By these decisions I want to show how better findings could and ought to have been arrived at; on the other hand, good decisions which are essential to the community shall be held out as exemplary.

There is yet another consideration, which caused me to issue these “Judges’ Letters”—The outlined view of the judge’s tasks has carried its point with most of the German lawyers, its practical effects on the administration of justice, however, has not yet been totally realized and cannot have been fully realized yet in view of the traditional training of lawyers. Therefore, I want to help the judge by means of the Judges’ Letters to accomplish his high duties in the life of our nation. I want to impress upon him how he must help and protect the community.

The Judges’ Letters are not intended to create a new cult of decisions, which would lead to further formalism in the administration of justice and to subjecting the judges to tutelage. They are only to give an idea of how the leadership of justice wishes to apply National Socialist law, in order to give the judge self-confidence and freedom to find the right decision.

The contents of the letters are confidential; they are handed to each judge and public prosecutor by the chief against receipt.

I am convinced that the Judges’ Letters will essentially contribute to the creation of a uniformly directed German corps of judges.

Berlin, 1 October 1942

[Signed] Dr. Thierack

Reich Minister of Justice

1. PUBLIC ENEMIES, ESPECIALLY BLACK-OUT OFFENDERS[286]

Sentences imposed by several courts in the years 1941–1942

1. A 19-year-old laborer who had been employed by the Reichsbahn [Reich Railroad] since 1941, stole, soon after his appointment in the winter of 1941–1942, during black-out hours, luggage and parcels from the luggage vans of long distance trains, and parcels from mail vans. There were in total 21 charges against him.

The Special Court sentenced him to 4 years’ imprisonment as a public enemy.

2. A 34-year-old lathe operator attempted black-out purse snatching at the end of 1941. In the darkness he approached a woman in the street and snatched her handbag off her arm. He was followed and arrested. He has six previous convictions against him, among which was theft, inflicting bodily harm, and killing by negligence. He had been sentenced in respect of the bodily harm, because in 1931 he had together with a Communist knocked down a National Socialist with a fence pole.

The Special Court did not legally appraise the act as street robbery but as theft, because the woman carried the handbag only loose on her arm, so that the culprit did not have to use force. It regarded him nevertheless as a public enemy, and expressed the view, that the community should be specially protected against him. Yet the sentence imposed was but 2 years’ imprisonment.

3. A 29-year-old laborer, who was a shirker and had several previous convictions against him, tried in 1941 to commit black-out purse snatching. He had just been discharged from the hospital as a malingerer and wanted to provide himself with money. He followed two women in the darkness in the street and reached for the purse while passing them, but he could not pull it off, because it was held tightly. In answer to cries for help, some men hurried to the scene and got hold of the culprit.