VII. OPINION AND JUDGMENT (continued 4)

“II. This agreement is based on the following considerations: Poles and eastern nationals are alien and racially inferior people living in the German Reich territory.”

The order continues:

“Such considerations which may be right for adjudicating a punishable offense committed by a German are however wrong for adjudicating a punishable offense committed by a person of alien race. * * * As a result of this, the administration of penal law for persons of alien race must be transferred from the hands of the administrators of justice into the hands of the police.”

On 24 September 1942 the defendant Joel prepared a secret report concerning the Reich Marshal’s plans for action in the Occupied Eastern Territories. The report states that “the Reich Marshal is looking for daring fellows who will be employed in the East for special purposes and who will be able to carry out tasks of creating confusion behind the lines.” The suggestion was that “poachers” and “fanatical members of smuggling gangs who take part in gun battles on the frontiers,” should be employed for this purpose. A copy of the report was sent to State Secretary Rothenberger for his attention and was submitted in connection with a proposed conference to be held on 9 October 1942. Minutes of a conference of 9 October 1942, signed by Dr. Crohne, incorporate the substance of Joel’s report, and state that the poachers have already been turned over to the Reich Leader SS for special duties. The report recommends that the district attorneys be given the task of obtaining the convicts for this special service, and provides further (662-PS, Pros. Ex. 263):

“Delivery of asocial convicts.—Persons in penal institutions designated as asocial persons by judicial decision are to be turned over to the Reich Leader SS.

“1. Persons in custody for reasons of security.—Persons in custody for reasons of security who are in German penal institutions will be put at the disposal of the Reich Leader SS. The execution of sentence will be regarded as interrupted by the delivery. * * *

“b. Whether women are also to be delivered is still doubtful. * * * In this regard it will have to be a fundamental point from the beginning that in the case of female Poles, Jews, and gypsies no doubt about the delivery can exist.

“c. Foreigners are not affected. Poles, Russians, Ukrainians, Jews, and gypsies do not rank as foreigners. * * *.

“2. Jews, gypsies, Russians, and Ukrainians will be delivered to the Reich Leader SS without exception.

“3. Poles.—Ethnic Poles who are subject to the Polish criminal law regulations, or have been delivered to the Polish penal authorities, and who have more than 3 years’ sentence to serve, will be delivered to the Reich Leader SS.

“Poles with smaller sentences will remain in the custody of the prison system. After serving their sentences they will be reported by name to the police just the same.”

It will be observed that the decisions concerning special treatment for Poles and Jews which were reached at this conference of 9 October 1942 antedate by almost 9 months the enactment of the 13th regulation concerning the Reich Citizenship Law of 1 July 1943 which provided “that criminal actions committed by Jews shall be punished by the police.”

On 1 April 1943 a letter from the Reich Ministry of Justice to the public prosecutors of the courts of appeal and others stated that the “Reich Security Office has directed by the decree of 11 March 1943 as follows:

“a. Jews, who in accordance with number VI of the guiding principles, are released from a penal institution, are to be taken by the State police (chief) office competent for the district in which the penal institution is located, for the rest of their lives to the concentration camps Auschwitz or Lublin in accordance with the regulations for protective custody that have been issued. The same applies to Jews who in the future are released from a penal institution after serving a sentence of confinement.

“b. Poles, who in accordance with number VI of the guiding principles, are released from a penal institution, are to be taken by the State police (chief) office competent for the district in which the penal institution is located, for the duration of the war to a concentration camp in accordance with the regulations on protective custody that have been issued.

“The same applies in the future to Poles who after serving a term of imprisonment of more than 6 months are to be discharged by a penal institution.”

It was stated that the ruling replaces previous orders. The instrument is stamped “Reich Ministry of Justice” and is signed by Dr. Eichler.

As a crowning example of fanatical imbecility, we cite the following document issued in April 1943 which was sent to the desk of the defendant Rothenberger for his attention and was initialed by him (NG-1656, Pros. Ex. 535):

“The Reich Minister of Justice “Information for the Fuehrer “1943 No.

“After the birth of her child a full-blooded Jewess sold her mother’s milk to a pediatrician and concealed that she was a Jewess. With this milk babies of German blood were fed in a nursing home for children. The accused will be charged with deception. The buyers of the milk have suffered damage, for mother’s milk from a Jewess cannot be regarded as food for German children. The impudent behavior of the accused is an insult as well. Relevant charges, however, have not been applied for, so that the parents, who are unaware of the true facts, need not subsequently be worried.

“I shall discuss with the Reich health leader the racial-hygienic aspect of the case.

“Berlin, April 1943”.

The witness Lammers, former Chief of the Reich Chancellery, testified as follows:[663]

“Q. * * * Now, you answered Dr. Kubuschok that the subject of sterilization of half-Jews was an alternative to their being moved to the East and that it had been raised by half-Jews themselves in 1942 or prior thereto.”

“A. Yes. I said so.”

He testified further that the half-Jews were not subject to any compulsion. He was apparently of the opinion that a person was a free agent if he had a choice between sterilization and deportation to a concentration camp.

It will be recalled that the law of 4 December 1941 against Poles and Jews applied to the “Incorporated Eastern Territories.” Those territories were seized in the course of criminal aggressive war, but aside from the fact it is clear, as we have indicated, supra, that the purported annexation was premature and invalid under the laws and customs of war. The so-called annexed territories in Poland were in reality nothing more than territory under belligerent occupation of the military forces of Germany. The extension to and application in these territories of the discriminatory law against Poles and Jews was in furtherance of the avowed purpose of racial persecution and extermination. In the passing and enforcement of that law the occupying power in our opinion violated the provisions of the Hague Convention from which we quote:

“Until a more complete code of the laws of war has been issued, the high contracting parties deem it expedient to declare that, in cases not included in the regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”

Other relevant portions are as follows:

“Article 43.—The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

“Article 46.—Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.” (Hague Convention No. IV of 18 October 1907 36 Stat. 2277; Treaty Series No. 539; Mallory Treaties, Vol. 2, page 2269.)

The prosecutions which were proposed by Lautz cannot be justified upon any honest claim of military necessity. As a lawyer of ability, he must have known that the proposed procedure was in violation of international law.

Although the authorities are not in accord as to the proper construction of article 23h of the regulations annexed to the Hague Convention of 1907, we are of the opinion that the introduction and enforcement of the law against Poles and Jews in occupied Poland resulted in a violation of that provision which is as follows:

“It is forbidden to declare abolished, suspended, or inadmissible in a court of law the right and actions of the nationals of the hostile party.”[664]

The evidence discloses that the transfer of persons to concentration camps was done even before the war and on direct orders of Hitler. Dr. Lammers, Chief of the Reich Chancellery, on 8 August 1939, notified the Reich Minister of Justice that “the Fuehrer has given an order that all dispensable persons in security detention are to be put at the disposal of the Reich Leader SS immediately.” The same procedure was employed as to persons who had never been convicted.

On 24 January 1939, a conference was held at which reports were received from eight different court districts. The subject was “Protective Custody after Serving Term of Imprisonment, after Acquittal, after Release from Imprisonment on Remand.” Among the cases reported were those of defendants who were taken into custody by the police in the court room immediately after their acquittal. Others were taken by the police in cases where there had been a refusal to issue a warrant of arrest. The report on the Hamburg situation by the defendant Rothenberger states that the number of persons taken into protective custody has increased. Rothenberger reports that in six cases Jewish women had been taken into protective custody because of sexual intercourse with Aryans. He quotes the State Police file as follows:

“1. Protective custody, ‘to make the punishment finally effective’ * * *.

“2. Protective custody, ‘to make the served sentences still more effective’ * * *.

“3. Protective custody, ‘because of the big number of previous convictions’.

“4. Protective custody ‘to prevent prejudicing the course of justice through the interference of lawyers as defense counsel’.”

The report on the conference ends as follows:

“The Minister concludes the discussion by indicating that it is to be the task of the chief presidents to see that arrests in the court room by the State Police are avoided, and recommends for the rest to maintain the connection with the State Police.”

The report is signed by the defendant Klemm.

Former defendant Engert as vice president of the People’s Court, and Thierack, the president of the People’s Court, protested in July and August 1940 against the trial of minor cases in the People’s Court as not being compatible with the dignity of the tribunal and suggested that the defendants in such cases should be transferred to a concentration camp. As Thierack put it—

“However right it is to exterminate harshly and uproot all the seeds of insurrection, as for example we see them in Bohemia and Moravia, it is wrong for every follower, even the smallest, to be given the honor of appearing for trial and being judged for high treason before a People’s Court or, failing that, before an appellate court. In order to deal with these small cases and even with the smallest, the culprits should surely be shown that German sovereignty will not put up with their behavior and that it will take action accordingly. But that can also be done in a different way and I think in a more advantageous one, than through the tedious and also very expensive and ponderous channels of court procedure. I have therefore no objection whatsoever, if all the small hangers-on who are somehow connected with the high treason plans which have been woven by others are brought to their senses by being transferred to a concentration camp for some time.”

As early as 29 January 1941 the senior public prosecutor at Hamm wrote to the Reich Minister of Justice, for the attention of State Secretary Schlegelberger (NG-685, Pros. Ex. 259):

“Upon inquiry, the Reich Trustee for Labor for the economic territory of Westphalia-Lower Rhine has informed me that ‘in accordance with an agreement between the Reich Minister for Labor and the Reich Leader SS as Chief of the German Police, breach of work contracts by Poles are to be punished by the Secret State Police with protective custody or concentration camps. The meaning of this step’—so writes this Reich trustee—‘is that in the case of Poles the strictest measures are to be taken at once * * *’. For this reason we made it a point in my office to transfer the cases involving breaches of work contracts by Polish civilian workers, to the Gestapo (Secret State Police) for further action.”

The same letter informs the defendant Schlegelberger of uncertainty which has arisen in the treatment of Polish civilians because in some cases the courts would sentence to 2 or 3 years imprisonment while the State Police may pronounce the death sentence for the same crime.

While the part played by the Ministry of Justice in the extermination of Poles and Jews was small compared to the mass extermination of millions by the SS and Gestapo in concentration camps, nevertheless the courts contributed greatly to the “final solution” of the problem. From a secret report from the office of the Reich Minister of Justice to the judges and prosecutors, including the defendant Lautz, it appears that 189 persons were sentenced under the law for the protection of German blood and honor in 1941, and 109 in 1942. In the year 1942, 61,836 persons were convicted under the law against Poles and Jews. This figure includes persons convicted in the Incorporated Eastern Territories, and also convictions for crimes committed in “other districts of the German Reich by Jews and Poles who on 1 September 1939 had their residence or permanent place of abode in territory of the former Polish state.” These figures, of course, do not include any cases in which Jews were convicted of other crimes in which the law of 4 December 1941 was not involved.

The defendants contend that they were unaware of the atrocities committed by the Gestapo and in concentration camps. This contention is subject to serious question. Dr. Behl testified that he considered it impossible that anyone, particularly in Berlin, should have been ignorant of the brutalities of the SS and the Gestapo. He said: “In Berlin it would have been hardly possible for anybody not to know about it, and certainly not for anybody who was a lawyer and who dealt with the administration of justice.” He testified specifically that he could not imagine that any person in the Ministry of Justice, or in the Party Chancellery, or as a practicing attorney or a judge of a Special (or) People’s Court could be in ignorance of the facts of common knowledge concerning the treatment of prisoners in concentration camps. It has been repeatedly urged by and in behalf of various defendants that they remained in the Ministry of Justice because they feared that if they should retire, control of the matters pertaining to the Ministry of Justice would be transferred to Himmler and the Gestapo. In short, they claim that they were withstanding the evil encroachments of Himmler upon the justice administration, and yet we are asked to believe that they were ignorant of the character of the forces which they say they were opposing. We concur in the finding of the first Tribunal in the case of United States et al. vs. Goering, et al., concerning the use of concentration camps. We quote:

“Their original purpose was to imprison without trial all those persons who were opposed to the government, or who were in any way obnoxious to German authority. With the aid of a secret police force, this practice was widely extended, and in course of time concentration camps became places of organized and systematic murder where millions of people were destroyed.

*******

“A certain number of the concentration camps were equipped with gas chambers for the wholesale destruction of the inmates, and with furnaces for the burning of the bodies. Some of them were in fact used for the extermination of Jews as part of the ‘final solution’ of the Jewish problem.

*******

“In Poland and the Soviet Union these crimes were part of a plan to get rid of whole native populations by expulsion and annihilation, in order that their territory could be used for colonization by Germans. Hitler had written in ‘Mein Kampf’ on these lines, and the plan was clearly stated by Himmler in July 1942, when he wrote:

“‘It is not our task to Germanize the East in the old sense, that is to teach the people there the German language and the German law, but to see to it that only people of purely Germanic blood live in the East’.”[665]

A large proportion of all of the Jews in Germany were transported to the East. Millions of persons disappeared from Germany and the occupied territory without a trace. They were herded into concentration camps within and without Germany. Thousands of soldiers and members of the Gestapo and SS must have been instrumental in the processes of deportation, torture, and extermination. The mere task of disposal of mountainous piles of corpses (evidence of which we have seen) became a serious problem and the subject of disagreement between the various organizations involved. The thousands of Germans who took part in the atrocities must have returned from time to time to their homes in the Reich. The atrocities were of a magnitude unprecedented in the history of the world. Are we to believe that no whisper reached the ears of the public or of those officials who were most concerned? Did the defendants think that the nationwide pogrom of November 1938 officially directed from Berlin and Hitler’s announcement to the Reichstag threatening the obliteration of the Jewish race in Europe were unrelated? At least they cannot plead ignorance concerning the decrees which were published in their official organ, “The Reichsgesetzblatt”. Therefore, they knew that Jews were to be punished by the police in Germany and in Bohemia and Moravia. They knew that the property of Jews was confiscated on death of the owner. They knew that the law against Poles and Jews had been extended to occupied territories, and they knew that the Chief of the Security Police was the official authorized to determine whether or not Jewish property was subject to confiscation. They could hardly be ignorant of the fact that the infamous law against Poles and Jews of 4 December 1941 directed the Reich Minister of Justice himself, together with the Minister of the Interior, to issue legal and administrative regulations for “implementation of the decree”. They read The Stuermer. They listened to the radio. They received and sent directives. They heard and delivered lectures. This Tribunal is not so gullible as to believe these defendants so stupid that they did not know what was going on. One man can keep a secret, two men may, but thousands, never.

The evidence conclusively establishes the adoption and application of systematic government-organized and approved procedures amounting to atrocities and offenses of the kind made punishable by C. C. Law 10 and committed against “populations” and amounting to persecution on racial grounds. These procedures when carried out in occupied territory constituted war crimes and crimes against humanity. When enforced in the Alt Reich against German nationals they constituted crimes against humanity.

The pattern and plan of racial persecution has been made clear. General knowledge of the broad outlines thereof in all its immensity has been brought home to the defendants. The remaining question is whether or not the evidence proves beyond a reasonable doubt in the case of the individual defendants that they each consciously participated in the plan or took a consenting part therein.

THE DEFENDANT SCHLEGELBERGER

The defendant Franz Schlegelberger was born on 23 October 1875 in Koenigsberg. He received the degree of doctor of law at the University of Leipzig in 1899 and passed the higher state law examination in 1901. He is the author of several law books. His first employment was as an assistant judge at the local court in Koenigsberg. In 1904 he became judge at the district court at Lyck. In 1908 he was appointed judge of the local court in Berlin and in the fall of the same year was appointed as an assistant judge of the Berlin Court of Appeals. He was then appointed councillor of the Berlin Court of Appeals in 1914, where he worked until 1918. During the First World War, on 1 April 1918 he became an assistant to the Reich Board of Justice. On 1 October 1918 he was appointed Privy Government Councillor and department chief. In 1927 he was appointed ministerial director in the Reich Ministry of Justice. On 10 October 1931 he was appointed Secretary of State in the Reich Ministry of Justice under Minister of Justice Guertner, which position he held until Guertner’s death. Upon Guertner’s death on 29 January 1941 Schlegelberger was put in charge of the Reich Ministry of Justice as administrative Secretary of State. When Thierack became the new Minister of Justice on 20 August 1942, Schlegelberger resigned from the Ministry.

In 1938 Hitler ordered Schlegelberger to join the NSDAP. Schlegelberger testified that he made no use of the Party, that he never attended a Party meeting, that none of his family belonged to the Party, and that Party attitudes often rendered his position difficult. However, upon his retirement as Acting Minister of Justice on 20 August 1942, Schlegelberger received a letter of appreciation from Hitler together with a gift of 100,000 RM.

Later in 1944 Hitler gave Schlegelberger the special privilege to use the 100,000 RM to purchase a farm, which under the rule then prevailing could have been purchased only by an expert agriculturist. Schlegelberger states that the 100,000 RM were on deposit in a Berlin German bank to his account when the collapse came. Thus, it is shown that Hitler and Schlegelberger were not too objectionable to each other. These transactions also show that Hitler was at least attempting to reward Schlegelberger for good and faithful service rendered in the performance of some of which Schlegelberger committed both war crimes and crimes against humanity as charged in the indictment.

We have already adverted to his speech at the University of Rostock on 10 March 1936, on the subject, “A Nation Beholds Its Rightful Law.” In this speech Schlegelberger declared:

“In the sphere of criminal law the road to a creation of justice in harmony with the moral concepts of the new Reich has been opened up by a new wording of section 2 of the criminal code, whereby a person is also (to) be punished even if his deed is not punishable according to the law, but if he deserves punishment in accordance with the basic concepts of criminal law and the sound instincts of the people. This new definition became necessary because of the rigidity of the norm in force hitherto.”

As amended, section 2 remained in effect until repealed by Law No. 11 of the Allied Control Council. The term “the sound people’s sentiment” as used in amended section 2 has been the subject of much discussion and difference of view as to both its proper translation and interpretation. We regard the statute as furnishing no objective standards “by which the people’s sound sentiment may be measured”. In application and in fact this expression became the “healthy instincts” of Hitler and his coconspirators.

What has been said with regard to the amendment to section 2 of the criminal code is equally true of the amendment of section 170a of the code by the decree of Hitler of 28 June 1935, which is also signed by Minister Guertner and which provides:

“If an act deserves punishment according to the common sense of the people but is not declared punishable in the code, the prosecution must investigate whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by the proper application of this penal law.”[666]

This new conception of criminal law was a definite encroachment upon the rights of the individual citizen because it subjected him to the arbitrary opinion of the judge as to what constituted an offense. It destroyed the feeling of legal security and created an atmosphere of terrorism. This principle of treating crimes by analogy provided an expedient instrumentality for the enforcement of Nazi principles in the occupied countries. German criminal law was therefore introduced in the incorporated areas and also in the nonincorporated territories, and German criminal law was thereafter applied by German courts in the trial of inhabitants of occupied countries though the inhabitants of those countries could have no possible conception of the acts which would constitute criminal offenses.

In the earlier portions of this opinion we have repeatedly referred to the actions of the defendant Schlegelberger. Repetition would serve no good purpose. By way of summary we may say that Schlegelberger supported the pretension of Hitler in his assumption of power to deal with life and death in disregard of even the pretense of judicial process. By his exhortations and directives, Schlegelberger contributed to the destruction of judicial independence. It was his signature on the decree of 7 February 1942 which imposed upon the Ministry of Justice and the courts the burden of the prosecution, trial, and disposal of the victims of Hitler’s Night and Fog. For this he must be charged with primary responsibility.

He was guilty of instituting and supporting procedures for the wholesale persecution of Jews and Poles. Concerning Jews, his ideas were less brutal than those of his associates, but they can scarcely be called humane. When the “final solution of the Jewish question” was under discussion, the question arose as to the disposition of half-Jews. The deportation of full Jews to the East was then in full swing throughout Germany. Schlegelberger was unwilling to extend the system to half-Jews. He therefore proposed to Reich Minister Lammers, by secret letter on 5 April 1942 (4055-PS, Pros. Ex. 401):

“The measures for the final solution of the Jewish question should extend only to full Jews and descendants of mixed marriages of the first degree, but should not apply to descendants of mixed marriages of the second degree. [First degree presumably those with two non-Aryan grandparents, and second degree with only one.]

“With regard to the treatment of Jewish descendants of mixed marriages of the first degree, I agree with the conception of the Reich Minister of the Interior which he expressed in his letter of 16 February 1942, to the effect that the prevention of propagation of these descendants of mixed marriages is to be preferred to their being thrown in with the Jews and evacuated. It follows therefrom that the evacuation of those half-Jews who are no more capable of propagation is obviated from the beginning. There is no national interest in dissolving the marriages between such half-Jews and a full-blooded German.

“Those half-Jews who are capable of propagation should be given the choice to submit to sterilization or to be evacuated in the same manner as Jews.”

Schlegelberger knew of the pending procedures for the evacuation of Jews and acquiesced in them. As to half-Jews his only suggestion was that they be given the free choice of either one of the impaling horns of a dilemma. On 17 April 1941 Schlegelberger wrote to Lammers as follows (NG-144, Pros. Ex. 199):

“On being informed of the Fuehrer’s intention to discriminate in the sphere of penal law between the Poles (and probably the Jews as well), and the Germans, I prepared, after preliminary discussions with the presidents of the courts of appeal and the attorneys general of the annexed eastern territories, the attached draft concerning the administration of the penal laws against Poles and Jews in the annexed eastern territories and in the territory of the former Free City of Danzig.”

The draft of a proposed ordinance “concerning the administration of justice regarding Poles and Jews in the Incorporated Eastern Territories” was attached to his letter and is in evidence. A comparison of its phraseology with the phraseology contained in the notorious law against Poles and Jews of 4 December 1941 discloses beyond question that Schlegelberger’s draft constituted the basis on which, with certain modifications and changes, the law against Poles and Jews was enacted. In this respect he was not only guilty of participation in the racial persecution of Poles and Jews; he was also guilty of violation of the laws and customs of war by establishing that legislation in the occupied territories of the East. The extension of this type of law into occupied territories was in direct violation of the limitations imposed by the Hague Convention, which we have previously cited.

It is of interest to note that on 31 January 1942 Schlegelberger issued a decree providing that the provisions of the law against Poles and Jews “will be equally applicable with the consent of the public prosecutor to offenses committed before the decree came into force”. We doubt if the defendant would contend that the extension of this discriminatory and retroactive law into occupied territory was based on military necessity.

Schlegelberger divorced his inclinations from his conduct. He disapproved “of the revision of sentences” by the police, yet he personally ordered the murder of the Jew Luftgas on the request of Hitler, and assured the Fuehrer that he would, himself, take action if the Fuehrer would inform him of other sentences which were disapproved.

Schlegelberger’s attitude toward atrocities committed by the police must be inferred from his conduct. A milking-hand, Bloedling, was sentenced to death in October 1940, and during the trial he insisted his purported confession had been obtained as a result of beatings imposed upon him by the police officer Klinzmann. A courageous judge tried Klinzmann and convicted him of brutality and sentenced him to a few months imprisonment. Himmler protested against the sentence of Klinzmann and stated that he was going “to take the action of the Hauptwachtmeister of the police Klinzmann as an occasion to express gratitude for his farsighted conduct which was only beneficial to the community.” He said further:

“I must reward his action because otherwise the joy of serving in the police would be destroyed by such verdicts. But finally K. has to be rehabilitated in public because his being sentenced by a court is known in public.”

On 10 December 1941 Schlegelberger wrote to the Chief of the Reich Chancellery stating that he was unable to understand the sentence passed against Klinzmann. We quote:

“No sooner had the verdict passed on Klinzmann become known here, orders were for this reason given to the effect that the sentence in case of its validation should not be carried out for the time being. Instead, reports concerning the granting of a pardon should be made as soon as possible. In the meantime, however, the sentence passed on Klinzmann became valid, by decision of the Reich [Supreme] Court of 24 November 1941 which abandoned the procedure of revision as apparently unfounded. Taking into regard also the opinion you expressed on the sentence, Sir, I now ordered the remission of the sentence and of the costs of proceedings by way of pardon as well as the striking out of the penalty note in the criminal records.”

On 24 December 1941 Schlegelberger wrote to Lammers that he had quashed the proceedings. In February 1942 Himmler wrote expressing appreciation of the efforts in quashing the proceedings against Klinzmann and stated that he had since promoted him to Meister of the municipal police.

Schlegelberger presents an interesting defense, which is also claimed in some measure by most of the defendants. He asserts that the administration of justice was under persistent assault by Himmler and other advocates of the police state. This is true. He contends that if the functions of the administration of justice were usurped by the lawless forces under Hitler and Himmler, the last state of the nation would be worse than the first. He feared that if he were to resign, a worse man would take his place. As the event proved, there is much truth in this also. Under Thierack the police did usurp the functions of the administration of justice and murdered untold thousands of Jews and political prisoners. Upon analysis this plausible claim of the defense squares neither with the truth, logic, or the circumstances.

The evidence conclusively shows that in order to maintain the Ministry of Justice in the good graces of Hitler and to prevent its utter defeat by Himmler’s police, Schlegelberger and the other defendants who joined in this claim of justification took over the dirty work which the leaders of the State demanded, and employed the Ministry of Justice as a means for exterminating the Jewish and Polish populations, terrorizing the inhabitants of occupied countries, and wiping out political opposition at home. That their program of racial extermination under the guise of law failed to attain the proportions which were reached by the pogroms, deportations, and mass murders by the police is cold comfort to the survivors of the “judicial” process and constitutes a poor excuse before this Tribunal. The prostitution of a judicial system for the accomplishment of criminal ends involves an element of evil to the State which is not found in frank atrocities which do not sully judicial robes.

Schlegelberger resigned. The cruelties of the system which he had helped to develop were too much for him, but he resigned too late. The damage was done. If the judiciary could slay their thousands, why couldn’t the police slay their tens of thousands? The consequences which Schlegelberger feared were realized. The police, aided by Thierack, prevailed. Schlegelberger had failed. His hesitant injustices no longer satisfied the urgent demands of the hour. He retired under fire. In spite of all that he had done he still bore an unmerited reputation as the last of the German jurists and so Hitler gave him his blessing and 100,000 RM as a parting gift. We are under no misapprehension. Schlegelberger is a tragic character. He loved the life of an intellect, the work of the scholar. We believe that he loathed the evil that he did, but he sold that intellect and that scholarship to Hitler for a mess of political pottage and for the vain hope of personal security. He is guilty under counts two and three of the indictment.

THE DEFENDANT KLEMM

Herbert Klemm, formerly State Secretary of the Reich Ministry of Justice, was born in Leipzig on 15 May 1903. After normal schooling, he passed his first legal state examination in 1925, his second legal state examination in 1929. From 1929 to 1933, he was court assessor of the prosecution authority of Dresden. From March 1933 to March 1935 he was the personal Referent and adjutant of Thierack, Minister of Justice, Saxony. In 1935, at the time of the centralization of the administration of justice, he was transferred to the Reich Ministry of Justice where he remained until he was mobilized for war service on 23 June 1940. On 20 April 1939 he was promoted to the office of Ministerialrat. In July of 1940 he was assigned to the Reich Commissioner for the Occupied Dutch Territories, upon the request of the Plenipotentiary for Occupied Dutch Territories. On 17 March 1941 he was transferred to the staff of the deputy of the Fuehrer, which later became the Party Chancellery, in Munich. He remained with the Party Chancellery until 4 January 1944, when he became state secretary of the Reich Ministry of Justice under Thierack. He remained in this capacity until the surrender.

Klemm’s Party connections were as follows: he applied for membership in the NSDAP on 4 November 1930; his membership card, 405576, was received 1 January 1931. On 30 June 1933 he joined the SA; the highest rank which he received in the SA was that of Oberfuehrer. When in Saxony he was the legal advisor of the SA for Saxony and liaison officer between the SA for Saxony and the Minister of Justice for Saxony. When he was transferred to Berlin, he was the liaison officer between the Reich Ministry of Justice and the SA Chief of Staff for Germany and the legal advisor to the Chief of Staff of the SA for Germany.

He was a member of the National Socialist Jurists’ League from 1933. In September of 1944 he was appointed deputy chief of the National Socialist Jurists’ League by Thierack, who was at that time chief.

He received the Bronze Party Service decoration in 1941 and the Golden Party decoration, the latter being conferred by Bormann in 1943.

During the time in which the defendant was in Saxony, he was a member of the disciplinary court of the SA group which dealt with the purge of the SA in connection with the Roehm Putsch.

A brief outline of the official activities of the defendant Klemm is as follows: after transfer to Berlin in 1935, the defendant dealt with acts against the State and Party and, later, the malicious acts law. In this field prosecution could be ordered only by the Ministry of Justice with the permission of the office of the deputy of the Fuehrer, which later became the Party Chancellery.

It was during this period that the following circular, dated Berlin, 18 October 1937, and initialed by Klemm, was issued (NG-310, Pros. Ex. 33):

“1. Criminal procedures concerning more severe interrogations by the Stapo will be dealt with centrally by Chief Prosecutor Klemm. They are to be sent to the competent co-worker Prosecutor Winkler.

“2. As far as reports concerning executions when escaping from concentration camps, etc., suicides in K.Z. arrive, they shall continue to be dealt with by the specialist competent for the respective subject. The general consultant for political criminal matters, however, is to be informed of the reports. They are to be submitted to him once.”

The practice of more severe interrogations, according to the testimony of Lautz, caused much worry to those concerned with the administration of justice. By the term “more severe interrogations” is meant “third degree” methods which Hitler authorized the police to use in cases considered important for the safety of the State.

From July 1940 to March 1941, while Klemm was in Holland, he had charge of both civil and penal law. The penal section in Holland was for German citizens not in the army and Dutch who infringed on German interests. He was also liaison officer between the commissioner general for the administration of justice and secretary of the Dutch Ministry of Justice at The Hague.

During this period there were published in the official gazette for the occupied Dutch territories, in the year 1944,[667] decrees of the Reich Commissioner of Occupied Dutch Territories, Seyss-Inquart, pertaining to the registry of Jewish property, the confiscation of same under certain circumstances, and for the transfer of Jewish property to an official in the nature of an administrator. During this time a letter was written by Tenkink, Secretary General of the Dutch Ministry of Justice, to the Reich Commissioner of Holland, which shows the defendant’s signature, informing the commissioner of excesses committed against Jews in Holland.

During this period letters dated 24 and 30 September 1940, marked “Secret,” and signed by the defendant, to the department for legislation, Lange Vijverberg, with opinions and recommendations as to the registration and confiscation of Jewish property in Holland, were transmitted.

A letter dated 24 September 1940 contains the following statement:

“In my view it must be achieved with other means to eliminate Jewish influence from such corporations. In the Reich, too, it needed months of careful work to gradually extract Jewish capital without disturbing the economy or to eliminate Jewish influence altogether.”

The defendant Klemm was in the office of the deputy of the Fuehrer and Party Chancellery from March 1941 to January 1944. The Party Chancellery had to approve the drafts of decrees in connection with national laws and ordinances and also was charged with the responsibility for the approval of high official appointments. The Party Chancellery was formed from what had originally been the office of the deputy of the Fuehrer under Hess. It was the instrument of the Party in matters of State and soon became virtually the instrument of Bormann.

In the Party Chancellery Klemm was Chief of Group III-C. This group had the following functions, as stated by the defendant:

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

Among his activities, and in conference with officials from the Ministry of Justice, he made suggestions for strengthening the powers of the police.

At another conference with officials from the Ministry of Justice concerning the political evaluations of persons in connection with legal procedure, he represented the standpoint of the Party that Party evaluations should be accepted by the courts.

During the time that Klemm was Chief of Group III-C, the act providing for the retroactive application of law concerning treason was enacted and applied to the annexed eastern territories. It was claimed by the defendant that this was based upon a decision of Bormann.

At this time legislation depriving the Jews of legal rights was also contemplated; drafts of the proposals made were dealt with, and the letter of 9 September 1942, prepared in Department III, was dispatched.

Also as part of the activities of Group III-C under Klemm, the proposal of the defendant Schlegelberger regarding confirmation of sentences of penal cases by the president of the district court of appeals was disposed of and the defendant claims he influenced Bormann to oppose this recommendation of the Ministry of Justice.

During this period a circular entitled, “The New Organization of Justice,” signed by Bormann, and which the defendant Klemm claims was intended to free the Ministry of Justice from Party criticism, states as follows:

“Hereby is further required that you report to me all complaints which you have to bring in matters of justice, so that I can clear up the situation immediately by confidential negotiations with the Reich Minister of Justice. Should it, after a discussion with the Reich Minister of Justice, seem absolutely necessary that a problem is brought to the Fuehrer, then this will be taken care of by Reich Minister Dr. Lammers and myself.”

During this period Klemm wrote the Minister of Justice as follows:

“Your letter of 5 August 1943 is agreed to. No objections are raised to applying the German Criminal Code for Juveniles to foreign juveniles, unless they are Jewish, Polish, or gypsies. Regarding juvenile gypsies and those of mixed gypsy descent, you are asked to see to it that, simultaneously with the coming into force of the new law concerning Reich juveniles, a special regulation will come into effect which will prevent the German Criminal Code for Juveniles from applying to gypsies and those of gypsy descent merely because a definite regulation is lacking.”

The defendant states that during this period Bormann called him on the telephone and inquired whether he knew Rothenberger and inquired about Rothenberger. Also he later submitted to the defendant Klemm an inquiry as to the background and qualifications of persons presumed to have been possible appointees as Reich Minister of Justice. These included Thierack, and Klemm states that his report to Bormann was favorable to Thierack. These inquiries were made of the defendant in spite of the fact that, according to his testimony, he had to deal only with matters pertaining to the administration of justice, and these were definitely personnel matters under another department of the Party Chancellery.

During this period he was the liaison officer between Thierack and the Party Chancellery. As to this relationship, Klemm states:

“Thierack asked me in all matters concerning the justice group of the Party Chancellery to come to him, that is to him personally, immediately and not to discuss them with the various Referents at the Ministry * * * and as I had worked in both fields, the best thing for him to get acquainted with the matter would be if I reported to him in person.”

With reference to Klemm’s duties as Under Secretary of State, the following paragraph of a report of the conference of the department chiefs, held 6 January 1944, outlines in part his duties in the Ministry as follows (NG-195, Pros. Ex. 45):

“The Minister announced that from now on the Departments III, IV, and V, too, would be placed under the control of the State Secretary and hereby recalled the contrary regulation in office routine, which was published on 27 August 1942, but added that all death sentences must continue to be submitted to him. He would request the State Secretary to be present when they were submitted. Furthermore, all political and legal matters of particular importance must be reported to him.”

Klemm maintains that his supervision of Departments III, IV, and V was merely on paper. However, the testimony of Hecker does not bear this out as regards Department V, nor does the testimony of Eggensperger.

During this period the decree against Poles and Jews was still being enforced under the jurisdiction of the Ministry of Justice insofar as any was left, outside the sphere of the Gestapo and the concentration camps.

During this period the Ministry of Justice still dealt with Nacht und Nebel cases. The defendant Klemm denies, in general, knowledge of NN procedure. Fourteen exhibits have been introduced in this case showing transactions concerning NN matters, subsequent to the time Klemm took over the office of State Secretary. The defendant admits knowledge that Nacht und Nebel prisoners were transferred from Essen to Silesia. He admits refusal of spiritual care for NN prisoners by foreign clergymen. He admits knowledge of a draft of a letter from Thierack to Bormann to the effect that NN women who were not to be executed should be so advised. He admits denying clemency to eight NN prisoners when he was acting as deputy for Thierack. In the remaining 123 cases, clemency was denied by Thierack when Klemm was presumably sitting in conference with him.

Among the fourteen documents enumerated above is a report from the defendant von Ammon, initialed by Klemm, relative to a trip concerning NN matters. This report states (NG-231, Pros. Ex. 332):

“The Military Commander in Chief, France, is grateful for the evidence which the military courts in occupied French territory receive as a result of the activity of the general legal authorities concerned with the prosecution and trial of NN cases in occupied French territory.”

Klemm explains this document by stating that he merely approved the trip. With the above explanations, Klemm’s counsel stated:

“These are the only documents which the prosecution has submitted against you as far as NN cases are concerned.”

In view of the fact that Klemm was State Secretary when these matters were disposed of and, nominally at least, charged with supervision of Department IV where they were handled, this conclusion is not one which this Tribunal accepts.

With regard to clemency during the time the defendant was State Secretary, Klemm is shown to have dealt with clemency matters as the advisor of Thierack when he was present and as his deputy in his absence. He states that personally he dealt only with clear cases and, further, that in clear cases clemency had been disapproved by seven agencies before it became a clear case. He states that clear cases were legally incontestable.

His testimony that in clear cases seven agencies disapproved clemency during the period when he was State Secretary, does not conform to the testimony of the defendant Lautz or with Exhibit 279 which Lautz cites. Lautz’ testimony on this point is as follows:

“The examination of these clemency pleas for their correctness was no longer possible for the prosecutions in the majority of cases. The prosecutors now had to restrict themselves to adding the pleas to their reports without changing them. The time limit laid down in the decree was, as a rule, not adhered to because the offices at the People’s Court and the Reich prosecution were so overburdened that it was impossible for them to submit the files within the time limit set. Owing to that, occasionally there was sufficient time to make further investigations in the matter of the clemency plea. However, the opinion of the court, the prison, and all other agencies was no longer heard. They had been of importance before.” (Tr. p. 5947.)

Moreover, what may constitute a legally incontestable case is subject to considerable speculation. Presumably a case based upon a confession would be legally incontestable. Certainly it can hardly be assumed that the defendant Klemm was unaware of the practice of the Gestapo with regard to obtaining confessions. He had dealt with this matter during his early period with the department of justice. It is hardly credible that he believed that the police methods which at an earlier time were subject to some scrutiny by the Ministry of Justice, had become less harsh because the Gestapo, in October of 1940, was placed beyond the jurisdiction of law. He must have been aware that a prolific source of clear cases based on confessions and, therefore, legally incontestable, came to him from the obscurity of the torture chamber.

During the time Klemm was State Secretary, the plan of the leaders of the Nazi state to inspire the lynching of Allied fliers by the people of Germany was inaugurated, and during this period the matter of execution of approximately 800 political prisoners, prior to evacuation of the penitentiary at Sonnenburg, took place. These matters will be dealt with more fully hereafter.

As heretofore pointed out in this opinion, the essential elements to prove a defendant guilty under the indictment in this case are that a defendant had knowledge of an offense charged in the indictment and established by the evidence, and that he was connected with the commission of that offense.

As to the matter of knowledge of the defendant Klemm, aside from the sources of knowledge heretofore pointed out in this opinion in regard to all of the defendants herein, certain other facts are significant. The defendant’s sources of information were of a wide scope. He had been the liaison officer between the administration of justice and the SA in Saxony and the legal advisor of the chief of the SA for Saxony. On transfer to Berlin, he acted in the same capacity with the SA main office for the Third Reich and was the liaison officer between the Ministry of Justice and the SA Main office. In Holland he was head of the department of legal matters under Seyss-Inquart. He served with the Office of the Deputy of the Fuehrer and Party Chancellery from March 1941 to January 1944. There he was in charge of Group III-C. He was the friend of Klopfer in charge of Group III and, from the evidence, a trusted lieutenant of Bormann. Finally, he was State Secretary under Thierack, whom he had known since he was his adjutant and personal Referent in Saxony. In Berlin he lived with Thierack for the period in which he was State Secretary.

Klemm’s career under the Third Reich moved smoothly from comparative insignificance to the position of State Secretary in the Ministry of Justice. His ascent was marked by no serious differences as to Party policies. He was close to both Bormann and Thierack and ascended by their favor. Under the circumstances it is not credible that he was ignorant of the policies and methods of these ruthless figures.

The defendant lays great stress on an order of Hitler as to secrecy and states that in connection with this order he adhered strictly to it; that he did not attempt to hear anything outside of his official duties. Such orders as to secrecy were not confined to Germany during the war; they were standard procedure in other countries and by no means excluded knowledge of secret matters derived from normal human contacts, particularly friends and acquaintances in the higher levels of state affairs. Further, the confidential position held by the defendant gave him a wide scope as to secret matters within the sphere of his official duties. As State Secretary of the Ministry of Justice and deputy of the minister in his absence, the defendant’s official duties required knowledge of the higher spheres of State policy.

More specifically, Klemm knew of abuses in concentration camps. He knew of the practice of severe interrogations. He knew of the persecution and oppression of the Jews and Poles and gypsies. He must be assumed to have known, from the evidence, the general basis of Nacht und Nebel procedure under the Department of Justice. Therefore, it becomes important to consider his connection with the carrying out of these crimes alleged in the indictment and established by the evidence in this case.

It is clear from the evidence, heretofore outlined in part, that when the defendant Klemm was in Holland he knew of the persecution of Jews and he was connected to some extent with that persecution.

While he was in the Party Chancellery he wrote the letter, heretofore pointed out, denying the application of the German juvenile law to Poles, Jews, and gypsies. This Tribunal does not construe that letter as a legal opinion but as an expression of Party policy, submitted through the Party Chancellery to the Ministry of Justice to the effect that minors of the prescribed races must be subject to the merciless provisions of the decree against Poles and Jews. The argument that they were necessarily excluded because they were foreigners, and that the German Juvenile Act contemplated entrance into the Hitler Youth, and similar provisions applicable only to Germans has little significance when the letter itself expressly states that there were no objections to applying the German Criminal Code for juveniles to foreign juveniles, unless they were Poles, Jews, or gypsies. Further, it can hardly be construed as a legal opinion as to gypsies in view of the statement therein made that a special regulation will come into effect which will prevent the German Criminal Code for juveniles from applying to gypsies and those of gypsy descent merely because a definite regulation is lacking.

While in the Party Chancellery, Klemm took part in drafting the law to make treason retroactive and applying it to annexed territories, and this draft bears his signature.

As State Secretary he knew of the NN procedure and was connected therewith, particularly as to the approximately 123 NN prisoners sentenced to death who were denied clemency while he sat in conference with Thierack, and in the eight cases where he denied clemency as deputy for Thierack.

As State Secretary in the Ministry of Justice, he necessarily exercised supervision over the enforcement of the decree against Poles and Jews and dealt with clemency matters pertaining to cases tried under that decree.

In connection with the defendant Klemm, two other transactions constituting crimes charged in the indictment are of particular significance. The first of these is charged under the second count of the indictment as a war crime against all the defendants and, particularly under paragraph 18 of the indictment, charging the defendant Klemm with special responsibility and participation. This pertains to the inciting of the German population to murder Allied airmen forced down within the Reich.

Evidence of this plan of the leaders of the German State is found as follows: First in the correspondence relative to the treatment of so-called “enemy terrorist airmen”. As part of this correspondence from the deputy chief of the operations staff of the armed forces, entitled “Secret matter”, dated 6 June 1944, and signed by General Warlimont,[668] the following sentence is significant:

“Lynch justice should be considered as being the rule.” Further, a draft of a letter, dated Salzburg, 20 June 1944, to the Chief of the High Command of the Armed Forces, apparently drawn by the Foreign Office, contains this paragraph:

“The above considerations warrant the general conclusion that the cases of lynching ought to be stressed in the course of this action. If the action is carried out to such an extent * * * the deterring of enemy airmen is actually achieved.”

In furtherance of this plan, Goebbel’s speech of 27 May 1944 is cited and the letter from the Chief of the Party Chancellery, Fuehrer Headquarters, 30 May 1944, marked “Secret—not for publication,” and bearing the initials of Thierack, concerning “the people’s judgment of Anglo-American murders,” signed by Bormann, is significant, particularly the following paragraph:

“No police or criminal proceedings have been taken against the citizens who have taken part herein.”

The distribution of this circular was as follows: “Reichsleiter, Gauleiter, Verbaendefuehrer, Kreisleiter,”[669] and contains the following note to all Gauleiter and Kreisleiter, initialed by Thierack and signed by Friedrichs:

“The Chief of the Party Chancellery requests that the Kreisleiter inform the Ortsgruppenleiter only verbally of the contents of this circular.”

Exhibit 109 [635-PS, Pros. Ex. 109] is of even greater significance. This is a letter from the Reich Minister and chief of the Reich Chancellery, dated 4 June 1944, to the Reich Minister of Justice, Dr. Thierack, headed, “Regards people’s justice against Anglo-American murders”. This letter is quoted in its entirety:

“The Chief of the Party Chancellery informed me about the enclosed transcript of a secret circular letter and requested me likewise to inform you.

“I herewith comply with this and beg you to consider how far you want to instruct the courts and district attorneys with it.

“The Reich Leader and Chief of the German Police has, as I was further told by executive leader Bormann, so instructed his police leaders.”

It contains a handwritten note, initialed by Thierack as a signature and also initialed by Klemm, which reads as follows:

“Return note with the addition that such cases are to be submitted to me for the purpose of their examination for quashing in case proceedings are pending.”

In this adroit plan to encourage the murder of Allied airmen and escape the responsibility, therefore, under the recognized rules of warfare, the procedures adopted by the Ministry of Justice were unique and worthy of the legal minds of those who dealt with the matter. As shown in the affidavit of Pejlovec, a secret directive was sent out by the Ministry of Justice calling for reports in cases of the lynching of Allied airmen. This directive was interpreted by Pejlovec to the effect that no prosecutions were contemplated.

The witness Dr. Gustav Mitzschke, Referent in the legislative department, testified that he was instructed to call upon the State Secretary, which he did, and received the following instructions:

“When you talk to General Public Prosecutor Helm at Munich, please tell him that in cases where Allied fliers have been killed or ill-treated, the police and any other agencies concerned are to pass on the files to the prosecution office, and that the prosecution as quickly as possible must make a report to the minister and also forward the files.”

Helm issued a directive to the prosecutors under him. This directive called for reports and files in such cases and stated that they were necessary because sometimes other factors, such as robbery or the use of Allied uniforms to cover the murder of Germans, had to be considered.

Klemm stated that Mitzschke was directed to inform Helm that reports were to be given in all cases.

The witness Helm stated that the note in conformity with Mitzschke’s instructions as to the reports to be made was written and sent out, he thinks, on the same day of Mitzschke’s visit and, in his cross-examination he states that he is sure it was not later than the day after Mitzschke’s visit.

The witness Hans Hagemann, general public prosecutor at Duesseldorf, testified that he was directed that in such cases a report had to be made to the Ministry of Justice. He also verified the secret decree sent out by the Minister of Justice.

The nature of the reports called for, in itself, is not considered by this Tribunal of particular importance. Thierack had directed Klemm, as shown above, to submit to him reports as to cases pending “for quashing.” The procedure followed by the Ministry went beyond this in that it required reports and the transmittal of files of cases where no indictment had as yet been issued. The Ministry of Justice thus took over, in substance, the disposition of these cases and the prosecution throughout Germany was thereby restricted in its normal duty of filing indictments against those who had murdered Allied airmen and were criminals under German law. From the evidence in this case and from sources of judicial information, this Tribunal knows of many instances of the lynching of Allied airmen by the German population. No case has been brought to the attention of this Tribunal where an indictment was actually filed for such offenses. What reports and files were submitted to the Ministry of Justice we do not know, but it is obvious that such reports as were made were allowed to die in the archives of the Ministry.

There is evidence as to one case pertaining to this matter. The defendant Klemm in his testimony refers to it. Around the turn of the year 1944–45 in Kranenburg, in the district of the court of appeals, Duesseldorf, an SA leader had shot two captured paratroopers in cold blood. Regarding this, Klemm stated:

“We prosecuted that case and even though the police, as well as the Party offices, offered considerable resistance, these discussions were advanced energetically. I do not know of the final outcome.”

The evidence in this case, as shown by the testimony of Hagemann, indicates that during September of 1944, at the time of the Allied parachute attack on Arnhem two captured Canadian paratroopers were shot by one Kluetgen while a Kreisleiter stood by and either permitted or encouraged the shooting.

The witness Hagemann undertook to investigate the matter but was unable to do so fully because a Kreisleiter could not be so examined if he refused to testify. It was necessary if the Kreisleiter was to be examined to have the approval of the Party Chancellery. An application was made for such consent but it was never given. Hagemann stated that he made a report over the telephone to the Ministry about the case. He believed he spoke with the defendant Mettgenberg. Afterwards he made a written report to the Ministry of Justice. He told the Ministry that he needed their support to obtain permission for the Kreisleiter to testify. He received written instructions to clear up the case completely, but since no approval was received to interrogate the Kreisleiter, he could not continue the proceedings. He stated, that again and again he requested the Ministry to obtain permission for him to examine the Kreisleiter. When asked whether he heard from the Ministry regarding this authority, he stated that he had not.

Permission to examine the Kreisleiter not having been obtained, he was never examined. Up to the time of the capitulation of Germany, no indictment had been filed against Kluetgen. This apparently was the prosecution and energetic action on the part of the Ministry of Justice to which Klemm referred in his testimony. In many cases discussed before this Tribunal, indictment, trial, and final execution were certainly more expeditiously handled.

In this plan to incite the population to murder Allied airmen, the part of the Ministry of Justice was, to some extent, a negative one. However, neither its action in calling for a report on pending cases for quashing, nor its action in calling for reports and files pertaining to all such incidents, was negative. Certainly the net effect of the procedure followed by the Ministry of Justice resulted in the suppression of effective action in such cases, as was contemplated in the letter from the Reich Ministry and Chief of the Reich Chancellery to the Ministry of Justice.

The defendant Klemm was familiar with the entire correspondence on this matter. He specifically directed the witness Mitzschke to obtain reports. His own testimony shows that he knew of the failure to take effective action in the case cited, and it is the judgment of this Tribunal that he knowingly was connected with the part of the Ministry of Justice in the suppression of the punishment of those persons who participated in the murder of Allied airmen.

The second transaction of particular importance with regard to the defendant Klemm is connected with the penitentiary at Sonnenburg. The record in this case shows that in the latter part of January 1945 this great penal institution under the Ministry of Justice was evacuated and that prior thereto, between seven and eight hundred political prisoners therein were shot by the Gestapo.

Klemm denies knowledge of this matter and states:

“From the documents in this case only, particularly from the affidavit of Leppin, I found out that over 800 persons were shot at Sonnenburg.”

He testified further that about the middle of January, Thierack had told him that Himmler had subordinated the prisoners at Sonnenburg to his own command and that as Minister of Justice of the Reich he, Thierack, could no longer do anything in regard to this institution. He testified further:

“It is not only my opinion but it was absolutely clear that at that time that penal institution was exclusively under the order of Himmler.”

He stated that he spoke to Hansen about the subject of Sonnenburg after this conversation with Thierack as to the change in authority, and that Hansen knew about such change. He testified further “that the prisoners were turned over to the Gestapo, I only found out here in this courtroom.”

As to what occurred in the Ministry of Justice with regard to the evacuation of Sonnenburg, the testimony of Robert Hecker is important. Hecker was the Referent in the department of justice in Department V of Berlin. Hecker testified in substance as follows: that in discussions with Hansen, the general public prosecutor for the Kammergericht in Berlin and the official under the Ministry of Justice responsible for certain matters in penal institutions, Hansen told him it might be necessary to evacuate Sonnenburg and that preliminary discussions had been carried on; that he, Hansen, had discussed the matter with the State Secretary with regard to the measures to be taken, and he had misgivings and suggested to Hecker that Hecker discuss the matter with the State Secretary. Hecker further stated that when he was the official on duty one night for the Minister of Justice, he received a telephone call from the director at Sonnenburg to the effect that a Russian break-through had taken place and asking for instructions; that he thereupon called Thierack at his home and asked for instructions and Thierack stated that the institution would be defended, and that the authorities at the institution were so informed. As the break-through did not then threaten the penitentiary, this order was not carried out. Hecker testified that later the director of the prison asked what measures he should take if the occasion should arise and that thereupon he called the general public prosecutor at the Kammergericht as to what instructions had been issued. The general public prosecutor was away at that time but the Referent who was present informed him that according to the instructions issued, the police were supposed to be informed in the case of evacuations. He testified further that Eggensperger, a Referent in Department V of the Ministry of Justice, who was on duty the night of the evacuation of Sonnenburg, had informed him the next morning that the prison had been evacuated; that Eggensperger told him that Hansen had called the night before, stating that the action of turning the prisoners not to be evacuated over to the Gestapo was under way and, when questioned as to whether it had been authorized by the Ministry of Justice, Hansen had named Klemm as the person in the Ministry who knew of and approved the transaction. He stated further that Eggensperger had made a typewritten note reporting his telephone conversation with Hansen and that he had received a copy of the note.

On cross-examination the witness Hecker testified in substance that he was himself in charge of the problem of the evacuation of prisons. When asked if he had heard that Himmler, in the middle of January, had issued an order concerning Sonnenburg, he answered that he had not and repeatedly denied any knowledge to the effect that Himmler had taken charge at Sonnenburg, and stated that he had not heard any rumor in the Ministry of Justice to the effect that Thierack had given up authority to issue orders concerning Sonnenburg. He stated that the conversation with Thierack over the telephone was at night and that Thierack had merely answered briefly his inquiry, stating that the institution would be defended. He testified that during the course of that night he repeatedly spoke to the authorities in Sonnenburg penitentiary and that he tried to contact the competent person in the Kammergericht, namely Hansen, in regard to the matter. Hecker stated that the director of the penitentiary knew that some kind of an agreement with the Gestapo existed and what he should do in the case of an evacuation, and that there were secret directives for evacuating penitentiaries and prisons. As to the note made by Eggensperger, he stated that it included a statement to the effect that the matter had been discussed between the General Public Prosecutor and the State Secretary Klemm. When asked about what happened to prisoners not evacuated, he replied that “as far as I was informed, the prisoners were shot by the Gestapo.”

The testimony of Eggensperger in connection with the evacuation of Sonnenburg is also significant. Eggensperger testified that he was an official in the penal execution department of the Ministry of Justice; that he was the official on duty for the entire Ministry of Justice to whom telephone calls were channeled on the night that Hansen reported the evacuation of Sonnenburg. Hansen called him during the night and informed him that during that night the prisoners of Sonnenburg penitentiary would be handed over to the Gestapo; that a detachment of the Gestapo had already arrived at Sonnenburg; and that the action was under way. “Hansen told me that this evacuation, or rather this transfer of the prisoners being carried out, was because the enemy constituted an immediate danger to the prison.” When asked whether this directive had been approved by anyone in the Ministry of Justice, Hansen answered, “Yes. This matter has been discussed with the State Secretary Klemm.” He testified as to the note which he made reporting the transaction, and that Hecker received a copy of this note. He stated that he had been deeply impressed by the information which he had received and asked Hecker if it was true that the State Secretary knew anything about the matter and approved it, and when asked what Hecker said, he answered:

“Hecker shrugged his shoulders. He looked at me and said, ‘Well, Hansen has—’ Well, I can only give you the sense of what he says, that Hansen has fooled this Under Secretary of State and he has got around him, or he impressed him. I think he said, ‘Hansen has convinced the Under Secretary of State to approve it.’”

He further stated that when he asked Hansen whether the minister or the Ministry were familiar with the matter, he answered in the affirmative and told him that the State Secretary knew about it and that he had put this down in his file note.

On cross-examination when asked if, as a liaison officer in Berlin in Department V, he reported repeatedly to the defendant Klemm in his capacity as State Secretary, he answered, “Yes.” When asked with what matters he was concerned, he answered, “Again and again there were current matters which had to be discussed with the State Secretary who wanted some information and some information I gave him myself. In some complicated cases I asked the officials in charge to come in.” The witness also testified that because of Klemm’s personality he, Eggensperger, was quite surprised at the action of Klemm and that was why he discussed the matter with Hecker in the morning. He testified further that it was his duty to make the file note as to the telephone conversation which he had received; that that file note was, he would say, about a half of a typewritten page. When asked if the file note included the name Klemm in connection with the fact that Hansen had referred to him, he answered, “Yes.” When asked whether Hansen spoke about an agreement, whether he used the word “agreement,” the witness answered that while he could not state the exact word used, that Hansen informed him that the matter had been discussed and approved, and stated that Hansen “reported to me the execution of a directive which had been issued.” He further stated:

“If you ask me concerning the execution, it was the report of a general public prosecutor concerning an important occurrence in a penitentiary. I would formulate it like that. It was his duty to report this matter.”

When asked if the name Klemm was mentioned by Hansen because Hansen had noticed that the witness had some doubts, the witness answered:

“I certainly didn’t ask him whether the State Secretary had a report on that matter. I certainly asked him that the minister knew about it, and therefore, it was striking that he did not refer to the minister himself but rather to Klemm.”

He further testified:

“I was the only official, apart from Hecker, in Department V, who had remained in Berlin, and in that capacity I maintained contact between the Ministry—that is the RMJ—and the evacuated divisions. If Hansen was given any instructions, then it was I who passed them on to him. That brought about the fact that I had frequent contact with him, particularly over the telephone.”

He stated further that he never heard of anybody being called to account for the action taken in connection with the massacre at Sonnenburg.

Pertaining to the question as to who had the authority to determine what prisoners were to be evacuated in case of evacuation and what prisoners were to be turned over to the Gestapo for liquidation, [NG-030, Pros. Exhibit 290] is important.

This exhibit includes the directive from the Reich Ministry of Justice, dated 5 February 1945, which is designated “Secret,” to the public prosecutor in Linz, re: preparation for an evacuation of the penal institution within the district of Oberlandesgericht Graz. This letter shows enclosures. It states as follows:

“In view of the proximity of the front line I have advised the public prosecutor in Graz to make the necessary preparations for possible evacuation of the penal institutions within his jurisdiction, and I have decided that your district shall be the reception center for these institutions. You are requested to take any steps which may be necessary for their reception, as it might [become urgent at any moment. You will also get in touch] with the public prosecution in Graz and exchange all necessary particulars with him for the settlement of questions concerning you both. For details I refer to the enclosed directives. You are requested to keep me informed of whatever steps you take.”

It also includes a directive from the Reich Ministry of Justice with the file mark “IV a 56/45 g,” dated Berlin, 12 February 1945, marked “Secret,” and also contains the stamp of the Oberlandesgericht president at Linz, “Received 9 March 1945.” It is designated, “Relieving of the Penitentiaries.” It shows enclosures as follows: “Additional copies for the public prosecutor and all independent penal institutions.” This directive states, among other things:

“Foreigners can only be set free in full agreement with the police authorities; otherwise they must be transferred to the police.”

This directive is signed “Thierack.”

The exhibit contains further a directive to the public prosecutors, Linz, and is in part as follows:

“To the: Public Prosecutors, Linz. The authorities in charge of the independent administrative offices. Judges in charge of the juvenile prisons in Ottenheim [and Mattighofen].

“For their knowledge and consideration. The circulars given in the Reich ordinance of the Reich Ministers of Justice, dated 12 February, have been communicated as follows: * * *.”

This directive also contains a form to be used in connection with the discharge of prisoners, designated: “Supplement to: Reich Ordinance of Reich Ministers of Justice, dated 12 February 1945,” with the file mark “IV a 56/45 g,” and has the seal of Linz showing receipt.

The exhibit also includes a directive of “Evacuation of the Judicial Executive Institutions Within the General Plan for the Evacuation of Threatened Territories in the Reich.” This is marked “Secret” and has no heading, no date, and no signature (NG-030, Pros. Ex. 290).

This states, in paragraph 1:

“The evacuation of penal institutions lying within territories threatened by enemy attack is a matter of concern for the public prosecutors of the territories to be evacuated as well as for those within the territories appointed for reception in transit. This does not apply if the evacuation can be confined to a change of locality within the Landesgericht itself. The carrying out without friction of all measures of evacuation therefore depends upon the close cooperation of the public prosecutors concerned who must get in touch with each other on all the particulars which are necessary for those measures. The individual measures for evacuation must be left as far as possible to the personal initiative of the public prosecutors concerned, as only they possess the necessary knowledge of local conditions and are able to bring about the required cooperation with local administrative and Party offices. These directives can only give an indication of what is to be done.”

From the import, a fair inference is that it was an enclosure to the original letter of Thierack.

Further along, the document states:

“NN prisoners are not to be released under any circumstances. They are to be rapidly transferred to territories which are not in danger of enemy attack according to special orders.

“Foreigners are to be released only if they had their residence in the Reich for many years, if they are especially reliable and fulfill all the requirements under (h).

“Jews, Jewish persons of mixed race of the first degree, and gypsies are not to be released.

“For Polish subjects, who are protected personnel, a release may be considered only if the requirements made under (h) apply to them after the strictest investigation. The same applies to people living in the Protectorate of Bohemia and Moravia. Poles who have been sentenced to at least 1 year internment in a disciplinary camp, may also be turned over to the police, with an interruption, if necessary, in the execution of their sentence. This can only be done if an agreement is reached with the commander of the Security Police and the SD.”

Under the heading of “Carrying-out the evacuation” is stated (NG-030, Pros. Ex. 290):

“As soon as orders for evacuation are issued, the evacuation has to be carried out in full accordance with the plans agreed upon. In many cases, it is true, prevailing conditions will necessitate deviations and improvisations. Should it become impossible, for any reasons, to bring the prisoners back to the extent agreed upon, those prisoners who are not outspokenly asocial or hostile to the State, are to be released in good time so that they will not fall into the hands of the enemy. The elements mentioned before, however, must be turned over to the police for their removal, and if this is not possible they must be rendered harmless by shooting. All traces of the extermination are to be carefully removed.”

Further documents in this exhibit, issued at Linz, show that by agreement and orders of the defense commissioner, orders were issued by the prosecutor at Linz which appear to implement the preceding document. On 14 April 1945 the chief public prosecutor at Linz made an official report to the Reich Ministry of Justice showing steps which he had taken.

The significant directives of the Minister of Justice above quoted were issued shortly after the incident at Sonnenburg and concerned the disposition of prisoners in the penitentiaries of the Reich in areas threatened by the Allied advance. It is also significant that the defendant Klemm who denies all connection with or authority over the penitentiary at Sonnenburg in late January 1945 subsequently on 11 February 1945 ordered the evacuation of the prison at Bautzen, including the discharge of certain prisoners and the transfer of those not so discharged to Waldheim; and that around Easter of 1945 he ordered the evacuation of the prison at Rothenfeld and instructed the matron as to the disposition of the prisoners.

It is the contention of the defendant that Hansen was an unreliable person who falsely used the name of the State Secretary. It is to be noted, however, that the testimony does not show that Hansen was undertaking to obtain from Eggensperger authority for some contemplated action under alleged authority from the State Secretary. Hansen called Eggensperger who was the official on duty at the Ministry of Justice to make an official report of an action which was already under way and when questioned as to his authority, he cited the approval of the State Secretary. His report was embodied in an official note as he could assume it would be. This note stated that the action taken was based upon the approval of the State Secretary. Surely Hansen, an official under the Minister of Justice, whatever his character might have been, would never have dared to use falsely an alleged authority by the State Secretary to account for the liquidation of some 800 people and then make an official report that, according to all normal procedure, would come directly into the hands of the State Secretary.

This Tribunal is asked to believe that in the middle of January, Himmler took over the operations of the penitentiary at Sonnenburg and that the first time that the State Secretary, the defendant Klemm, heard of the liquidation of those who were not evacuated was in this trial. That Himmler controlled evacuations within the area of his command was shown by evidence in this case and can be assumed from the nature of the evacuation. An evacuation is a matter of military concern since it involves interference on the roads with military operations and transport. The operational control of a penal institution is an entirely different matter. In the middle of January, Himmler was in command of an army which was having considerable difficulty and he was scarcely in a position to assume the functions and responsibilities in the Ministry of Justice as regards the operations of a penal institution. Certainly if he did so it is strange that Eggensperger, a Referent in Department V dealing with penal institutions, or Hecker, also in Department V and in charge of evacuations of penal institutions, or the director of the institution at Sonnenburg, knew nothing about this transfer of authority some two weeks after it is alleged to have been made. It was also strange that Hansen, who is alleged to have known of this transfer of authority, would call the Ministry of Justice and make an official report as to the transaction on the night when it was under way and cite as his authority for his connection therewith the State Secretary. That the defendant Klemm knew nothing about the liquidation of some 800 people in this institution until he learned it in this trial, overtaxes the credulity of this Tribunal. Even in Nazi Germany the evacuation of a penal institution and the liquidation of 800 people could hardly have escaped the attention of the Minister of Justice himself or his State Secretary charged with supervision of Department V which was competent for penal institutions. Exhibit 290, herein extensively quoted, shows that the operations of penal institutions and the disposition of the inmates remained a function of the Ministry of Justice, and it is the opinion of this Tribunal that the Ministry of Justice was, at the time of the evacuation of Sonnenburg, responsible for the turning over of the inmates to the Gestapo for liquidation, and that the defendant, Klemm, approved in substance, if not in detail, this transaction.

When Rothenberger was ousted as State Secretary because he was not brutal enough, it was Klemm who was chosen to carry on the Thierack program in closest cooperation with the heads of the Nazi conspiracy. Klemm was in the inner circle of the Nazi war criminals. He must share with his dead friend, Thierack, (with whom he had lived), and his missing friend, Bormann, the responsibility, at a high policy level, for the crimes committed in the name of justice which fill the pages of this record. We find no evidence warranting mitigation of his punishment.

Upon the evidence in this case it is the judgment of this Tribunal that the defendant, Klemm, is guilty under counts two and three of the indictment.

THE DEFENDANT ROTHENBERGER

From his own sworn statements we derive the following information concerning the defendant Rothenberger. He joined the NSDAP on 1 May 1933 “for reasons of full conviction.” From 1937 until 1942 he held the position of Gau Rechtsamtleiter. He states: “As such I also belonged to the Leadership Corps.” Parenthetically, it should be stated that the organization within the Leadership Corps to which he belonged has been declared criminal by the judgment of the first International Military Tribunal, and that membership therein with knowledge of its illegal activities is a punishable crime under C. C. Law 10. We consider the interesting fact of his membership in the Leadership Corps no further, solely because defendant Rothenberger was not charged in the indictment with membership in a criminal organization. He was a Dienstleiter in the NSDAP during 1942 and 1943. From 1934 to 1942 he was Gaufuehrer in the National Socialist Jurists’ League. In 1931 he became Landgerichtsdirektor, and in 1933 Justiz-Senator in Hamburg. From 1935 to 1942 he was president of the district court of appeals in Hamburg. In 1942 he was appointed Under Secretary in the Ministry of Justice under Thierack. He remained in that office until he left the Ministry in December 1943, after which he served as a notary in Hamburg. Thus, it is established by his own evidence that while serving as president of the district court of appeals he was also actively engaged as a Party official. Other evidence discloses the wide extent to which the interests and demands of the Ministry of Justice, the Party, the Gau Leadership, the SS, the SD, and the Gestapo affected his conduct in matters pertaining to the administration of justice. Rothenberger took over the Gau Leadership of the National Socialist Lawyers’ League at the request of Gauleiter Kauffmann, who was the representative of German sovereignty in the Gau and who was, for all intents and purposes, a local dictator. As Gaufuehrer during the period following the seizure of power, Rothenberger had ample opportunity to learn of the corruption which permeated the administration of justice. He testified:

“It has been emphasized here time and again how during the first period, after the revolution of 1933, every Kreisleiter attempted to interfere in court proceedings; the Gestapo tried to revise sentences, and it is known how the NSRB, the National Socialist Jurists’ League, tried to gain influence with the Gauleiter or the Reichsstatthalter in order to act against the administration of justice.”

Concerning the dual capacity in which he served, he said:

“On account of the identity, of course, between president of the district court of appeals and Gaufuehrer, I was envied by all other district courts of appeal because they continually had to struggle against the Party while I was saved this struggle.”

In August 1939, on the eve of war, Rothenberger was in conference with officials of the SS and expressed to them the wish to be able to fall back on the information apparatus of the SD, and offered to furnish to the SD copies of “such sentences as are significant on account of their importance for the carrying-out of the National Socialist ideas in the field of the administration of justice.” Rothenberger testified that during the first few years after the seizure of power, there was the usual system of SD informers in Hamburg. The unsatisfactory personnel in the SD was removed by Reichsstatthalter Kauffmann, and the defendant Rothenberger nominated in their place individuals who, he said, “were judges and who I knew would never submit reports which were against the administration of justice.” He states also:

“In the meantime, the directive had been sent down from the Reich Ministry of Justice to the effect that the SD should be considered and used as a source of information of the State by agencies of the administration of justice.”

While he was president of the district court of appeals at Hamburg, and during the war, this ardent advocate of judicial independence was not adverse to acting as the agent of Gauleiter Kauffmann. On 19 September 1939 Kauffmann, as Reichsstatthalter and defense commissioner, issued an order as follows:

“The president of the Hanseatic Court of Appeals, Senator Dr. Rothenberger, is acting on my order and is entitled to demand information in matters concerning the special courts and to inspect documents of every kind. All administrative offices as well as the offices of the NSDAP are requested to assist him in his work.”

On 26 September 1939 Rothenberger, as president of the Hanseatic Court of Appeals, notified the Prosecutor General of Kauffmann’s order and requested that a copy of the indictment “in all politically important cases or cases which are of special interest to the public should be sent to him.” In a report to Schlegelberger of 11 May 1942 he spoke of the “crushing effect” of the Fuehrer’s speech of 26 April 1942 and of the feeling of consequent insecurity on the part of the judges, and said:

“I have therefore assumed responsibility for each verdict which the judges discuss with me before passing it.”

In the same report he states that on 6 May 1942 he made arrangements with all senior police officers, senior SS, senior officers of the criminal police, of the Secret State Police, and of the SD “to the effect that every complaint about juridical measures taken by judges was to be referred to me before the police would take action (especially regarding execution of sentence).”

In June 1942 Rothenberger reported to the defendant Schlegelberger that he had made similar arrangements in Bremen with the Kreisleiter, president of the police, leader of the Secret State Police (Gestapo), and the leader of the SD. He reported to Schlegelberger:

“In view of the present situation, I am intensifying the internal direction and control of jurisdiction which I have considered to be my main task since 1933.”

On 7 May 1942 Rothenberger issued an order in which he stated his intention to inform himself prior to the proceedings on cases which are of political significance “or which involve the possibility of a certain conflict between formal law and the instinctive reactions of the people or National Socialist ideology.” He directed that reports be submitted to him which must be in sufficient detail in order, as he said, “to enable my deputy to judge the necessity of my intervention.”

By reference to his own words we have already set forth Rothenberger’s expressed convictions as to the duty of a judge as the “vassal” of the Fuehrer to decide cases as the Fuehrer would decide. The conclusion which we are compelled to draw from a great mass of evidence is not that Rothenberger objected to the exertion of influence upon the courts by Hitler, the Party leaders, or the Gestapo, but that he wished that influence to be channeled through him personally rather than directed in a more public way at each individual judge. On the one hand he established liaison with the Party officials and the police, and on the other he organized the system of guidance of the judges who were his subordinates in the Hamburg area. He testifies that he considered the system of conferences between judges and prosecutors before trial, during trial and sometimes after trial, but before the consultation of the judges, to be wrong, and states that he considered it more correct, in view of the situation, that such a discussion should take place a long time before the trial and not between individual judges and the prosecutor, “but on a higher level, namely, between the chiefs of the offices, so that there would be no possibility to exert an influence on the individual judge in any way.” Concerning his dictatorial attitude toward the other judges, Rothenberger testified: “Of course, guidance is guidance, and absolute and complete independence of the judge is possible only in normal conditions of peace, and we did not have these conditions after the Hitler speech.”

The guidance system instituted by the defendant Rothenberger was not limited to conferences concerning pending cases of political importance before trial. We are convinced from the evidence that he used his influence with the subordinate judges in his district to protect Party members who had been charged or convicted of crime, that on occasions he severely criticized judges for decisions rendered against Party officials, and on at least one occasion was instrumental in having a judge removed from his position because he had insisted upon proceeding with a criminal case against a Party official.

As further illustration of the character of control which was exercised by Rothenberger over the other judges in his district, reference is made to his letter of 7 May 1942 addressed to the judges in Hamburg and Bremen in which he announced that a conference would be held for the discussion of cases fixed for the following week. We quote (NG-389, Pros. Ex. 76):

“A few cues to matters which will come up will be given, file numbers quoted, and comments made in a few key words.”

He especially required of the judges that they report to him concerning penal cases against Poles, Jews, and other foreigners, and “penal and civil cases in which persons are involved who are State or Party officials, or NSDAP functionaries, or who hold some other eminent position in public life.”