Official transcript of the American Military Tribunal in the matter of the United States Of America, against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 22 April 1947, 0930-1630, Justice Carrington T. Marshall, presiding.
THE MARSHAL: persons in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal 3. Military Tribunal 3 is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you please ascertain if all the defendants are present in the courtroom?
THE MARSHAL: May it please your Honors, all the defendants are present in the courtroom, with the exception of the defendants Rothaug and Engert, who are absent due to illness.
THE PRESIDENT: Let proper notation be made.
MISS ARBUTHNOT: If your Honors please, this morning we will continue with presentation of Document Book 6. The first Document NG-255, appears on pages 55 through 64 of the English, and on pages 55 through 60 of the German. This is correspondence concerning the admission of defense counsel elected by the defendants in "Nacht und Nebel" cases, together with comments concerning greater efforts necessary in carrying out secrecy measures under the "Nacht und Nobel" orders. admission of elective defense counsel was denied. On page 51 we find the statement -- correction, that is on page 57 -- we find the statement beginning with the first full paragraph:
"It is, therefore, my opinion that counsels for the defense in these proceedings should as a rule be only officially appointed and that only if in the estimation of the court and the prosecution the importance of the case demands it. This will, for instance, be the case in the proceedings that are expected to result in death sentences. None of the above mentioned objections exist in the case of the carefully selected official counsels for defense. As yet only two recognize , unconditionally reliable, pro-state and juridically efficient lawyers have been taken into consideration as such"-
THE PRESIDENT: I am wondering whether you read that accurately. Did I understand you to say "carefully selected case;" it should be "counsel."
MISS ARBUTHNOT: I beg your pardon, if I made that mistake.
(Continuing) "Accordingly, I intend to inform the applicant, attorney Freiherr von Gagern, in answer to his application of 6 October 1942 that no decision can be made in regard to his application since it is not permissible to investigate or to report on whether or not there are any proceedings pending here against the accused he mentions. Furthermore, I intend to continue to deal in the same way with similar applications.
"II. Beyond that, the present case induces me to report the experiences that have been encountered in connection with keeping secret proceedings of this type."-
THE PRESIDENT: I think you should raise your voice a little higher.
MISS ARBUTHNOT: (Continuing) "In this connection I believe that, I must say that, in general, the instructions for keeping secret these proceedings, the names of the accused, etc., are only kept uncompromisingly and lawfully by the authorities of justice."
On page 61 of the Document Book we find the initials of the defendants Mettgenberg and von Ammon. The letter on which these initials appear states that:
"Several attorneys general have raised the question whether chosen defense counsels are to be admitted in the procedures transferred to the general courts according to the directives of the Fuehrer of the 7th of December 1941"-- which directive, as you know, is the "Nacht und Nebel" order.
THE TRIBUNAL (JUDGE BRAND): I am sorry, we cannot hear you.
MISS ARBUTHNOT: I will raise my voice, your Honor.
THE TRIBUNAL (JUDGE BRAND): Will you speak a little closer to the microphone.
MISS ARBUTHNOT: Beginning again on this letter:
"Several attorneys general have raised the question whether chosen defense counsels are to be admitted in the procedures transferred to the general courts according to the directives of the Fuehrer of the 7th of December 1941 dealing with the prosecution of criminal actions Against the Reich or the occupation forces in the occupied territories. I have contacted the supreme commander of the Wehrmacht in that respect. He are both of the opinion that, in view of the regulations in force for keeping secret the procedures in question, there are basic objections to the admission of elective defense counsels On page 63 of this Document we also find a note that the defendant von Ammon is to receive a copy of all the correspondence.
His initials also appear on that page in the original photostat.
THE PRESIDENT: What page is that?
MISS ARBUTHNOT: Page 63.
Document NG-255 is offered as Exhibit No. 314.
THE PRESIDENT: The Document will be admitted in evidence.
MISS ARBUTHNOT: The next Document, NG-271, which appears on pages 65 through 75, of the English Book, and 61 through 70 of the German Book, is a letter from the OKW to the Ministry of Justice, to the attention of the defendant von Ammon, listing 224 persons imprisoned in connection with the "Porto" action. This is the action which your Honors questioned me about yesterday. The defendant von Ammon's initials appear on this Document.
THE PRESIDENT: My question raised was that "Porto" means France, but I think it means all the Western countries.
MISS ARBUTHNOT: Hell, this particular action was, I believe, limited to persons who were arrested in France. I don't know the history of the name "Porto" but the prisoners were treated as "Nacht und Nebel" prisoners.
THE PRESIDENT: "Porto" is the name of the first man who was tried.
MISS ARBUTHNOT: Document NG-271 is offered as Exhibit 315.
THE PRESIDENT: The Document will be admitted in evidence.
MISS ARBUTHNOT: The next Document is NG-272, appearing on pages 76 to 78 of the English Book, and 71 to 72 of the German Book. This is correspondence between the SS and the Reichs Ministry of Justice concerning "Porto" action. Regulations concerning the "Nacht und Nebel" prisoners are to be applied, according to this correspondence, and the relatives of the prisoners a re not to be informed of death, especially not of execution of a prisoner. This letter was to pass through the defendant Mettgenberg.
Document 272 is offered as Exhibit 316.
It has been c ailed to my attention that in the German book, on page 72 of the German and 76 of the English, in the first paragraph cf the letter which states " Already in my decree from 28 October 1942 in the English copy we have "-IV-"
THE PRESIDENT: "What page is that please?
MISS ARBUTHNOT: That is on page 76. In the German I understand there was a thypographical error and that " IV" was a "VI", but the " TV is correct as it appears in the English.
THE PRESIDENT: The document will be received in evidence.
MISS ARBUTHNOT: The next document, NG-253, appears en pares 79 through 84 of the English be k, and 73 through 80 of the German bock. This is correspondence concerning a new regulation with respect to the appointment of defense counsel in Nacht und Nebel cases. One of the reasons given for the curtailment cf appointment of defense counsel was that " The interest of foreign defendants can hardly be considered sufficiently important to justify continuous demands cf this kin- on staff and public funds."
That statement appears n page 81 of the English book, and on page 77 of the German.
THE PRESIDENT: I am wondering whether you can tell us about the symbol " I.A." on the bottom of pare 79.
MISS ARBUTHNOT: That is by order of."
On pare 79, the last paragraph, we find the statement in the proposed new order that:
" In trials in which according to the regulations, defense counsel, has to be provided for the defendant, the regulation may be ignored when the President of the Court can conscientiously state that the character of the accused and the nature of the charge make the presence of a defense counsel superfluous."
The initials of the defendants Mettgenberg and von Ammon appear on many of the pages of this document, They are not shown in the translation , but they do appear on the original photos tat.
THE PRESIDENT: If you have the information at the desk at this time, tell us were they appear.
MISS ARBUTHNOT: The photostat is being examined at the present time, but I can give you that information in a moment.
At the bottom of page 80 in the English book, and 75 in the German, the initials of Mettenberg and von Ammon appear. Also, at the bottom of page 75 are the initials of Mettgenberg and von Ammon.
THE PRESIDENT: I, probably is not justified in taking any more time.
MISS ARBUTHNOT: There are additional initials, but I have not been able to located the correct page in the ENglish translation.
Document NG-253 is offered as Exhibit 317.
THE PRESIDENT: The document will be received in evidence MISS ARBUTHNOT:
The next document, NG-267, appears on pages 85 to 87 of the English book, and 81 to 83 of the German book. This is a letter from the attorney General at the special court in Essen, Through the Chief public Prosecutor at Hamm--the Chief Public Prosecutor at that time being the defendant Joel--to the Ministry of Justice, dated the 20th of February 1943.
This letter concerns the methods to be used in turning Nacht und Nebel prisoners over to the Gestapo.
Document NG-267 is offered as Exhibit no 318.
THE PRESIDENT: The document will be received in evidence.
DR. HAENSEL: May I add to the record that reference has been made by Joel. May I be permitted to say that this document is not signed by Joel, but, first of all, by Engelmann as his deputy, and the decree on the document is signed by Hafner.
The signature of Joel does not appear on the document.
MISS ARBUTHNOT: The prosecution did not state the signature of Joel appeared on the document. We nerely stated that he was in office as public prosecutor in Hamm at the time that letter went through his office.
The next document is NG-269, appearing on pages 88 to 90 of the English and on 84 through 87 of the German. This is a letter from the Ministry of Justice dated March, 6 1943, addressed to Chief Prosecutor's People's Court, etc., concerning secrecy procedures to be followed with respect to Nacht und Nebel prisoners, in connection with the registration of births and deaths announcement of the death of a prisoner in the press or to the rela tives of the prisoner in connection with the burial, etc.
On page 88 at the bottom of the page we find the statement that:
"1. The cards used for investigations for the Reich Criminal Statistics need not be filled in. Likewise, notification of the penal records office will be discontinued until further notice. However, sentences will have to be registered in lists or on a card-index in order to make possible an entry into the penal records in due course. "2. In case of death, especially in cases of execution of NN-prisoners, as well as in cases of female NN-prisoners giving birth to a child, the registrar must be notified as prescribed by law. However, the following remark has to be added:
"By order of the Reich Minister of the Interior, the entry into the death or birth registry must bear an endorsement saying that examination of the papers, furnishing of information and of certified copies of death or birth certificates is only admissible with the consent of the Reich Minister of Justice."
Further, near the bottom of Page 89 of the English, I believe at the top of Page 86 of the German, is the statement that "the relatives will not be informed of the death and especially of the execution of an NN-prisoner. The press will not be informed of the execution of a death sentence, nor must the execution of a death sentence be publicly announced by posters.
"The bodies of executed NN-prisoners or prisoners who died from other causes have to be turned over to the State Police for burial. Reference must be nude to the existing regulations for secrecy. It must be pointed out especially that the graves of NN-prisoners must not be marked with the names of the deceased."
In the last paragraph we have the statement that "Legacies of Nacht and Nebel prisoners who have been executed or died from other causes must be kept at the prison where the sentence was served."
A copy of this document went to the defendant von Ammon, and it is initialled by the defendants von Ammon and Mettgenberg. The distribution list which appears on Page 90 of the English book includes the Attorney General at Hamm, which was the defendant Joel at that time.
Document 269 is offered as Exhibit 319.
THE PRESIDENT: May I inquire at this time whether any of the other defendants are included in the addresses found on Page 88? You have told us that Joel is.
MISS ARBUTHNOT: The Chief Reich Prosecutor at the People's Court, I believe, would be the defendant Lautz.
DR. HAENSEL (Counsel for Defendant Joel): There are some misunderstandings which have arisen here. The defendant Joel became Generalstaatsanwalt in Hamm in August 1943. The previous document and the one before that originate from a period when he was not at Hamm. That results from a document which, at the moment, I have not available, a document which the Prosecution has already submitted and which states that Joel took up his office in August 1943.
THE PRESIDENT: Maybe you might examine the other documents already introduced so that we can be assured of what you are saying now, instead of putting it off until later. And while we are on that subject, counsel for Lautz, if he has any similar claim to make, we should know of that at this time.
DR. GRUBE (Counsel for Defendant Lautz): I am not saying that the defendant Lautz was not Oberreichsanwalt at that tie, but it is not shown from the document that he actually received it. That is merely a distribution list from the Ministry. It is not proof that he actually received the document.
THE PRESIDENT: I think we can find that we have prima facie evidence that he received it from the document itself, but of course if he wasn't in office, that is another matter.
MISS ARBUTHNOT: He have merely stated that the distribution list shows that copies of these letters were to be forwarded to the persons listed.
As to the defendant Joel, it is our understanding that he was in office at that time.
THE PRESIDENT: Well, let counsel for Joel, if he has any further objections, make it known at the earliest possible date so that we will clear this up as we go along.
MISS ARBUTHNOT: Document 26? is offered as Exhibit 319.
THE PRESIDENT: The document will be received in evidence.
MISS ARBUTHNOT: The next document is NG 256, which appears on Pages 91 - 93 of the English and 88-89 of the German. This is correspondence between the Ministry of Justice and the Peoples' Court with respect to whether defense counsel will be allowed to Germans and provisional Germans on trial for offenses against the Reich in occupied territories. It was pointed out that Germans are not treated as Nacht and Nebel prisoners and counsel should be allowed. On page 92 of the English book, 89 of the German, the letter states that:
"The directives given by the Fuehrer on 7 December 1941 for the prosecution of criminal actions committed against the Reich or the occupation authorities in the occupied territories are applicable, according to their meaning and their tenor, to foreigners only, and not to German nationals or provisional Germans. My ordinance of 21 December 1942 cannot be applied therefore to the case mentioned by you. According to information received from the Chief Prosecutor with the People's Court, the Germans or provisional Germans involved in the criminal case which is the subject of your letter, are not treated as NN-prisoners. There is no objection therefore to grant admission to defense counsels of their own choice to these defendants."
This correspondence, including a note appearing on page 93, was -- rather, the note appearing on page 93 was signed by von Ammon and all of the correspondence came to his attention. The Public Prosecutor at the Peoples' Court, of course, was the defendant Lautz, although this letter, this correspondence, is from the President of the Peoples' Court at that time.
THE PRESIDENT: I don't understand. Lautz was not the president.
MISS ARBUTHNOT: No, he was not. I should have corrected that statement. NG 256 is offered as Exhibit No. 320.
THE PRESIDENT: The document will be received in evidence.
MESS ARBUTHNOT: Mr. King will continue with the presentation at this time.
MR.KING: As Exhibit 321, the prosecution introduces at this time the Document NG -243, which is to be found on Page 94 of the English Document Book VI, and 90 in the German. This is a letter dated Berlin, 3 June 1943 from the Reich Ministry of Justice to several addresses: the president of the people's Court, the Chief Reich Prosecutor of the people's Court , the Presidents at the Districts Courts of Appeal in Hamm, Cologne and Kiel, and the Counsel to the Court Martial, and Chief of Counsel in Hamm, Cologne and Kiel.
THE PRESIDENT: Which of the defendants arc identified as among those addresses?
MR. KING: Well, looking at Page 94, the Chief Reich Prosecutor of the people's Court would of course be Lautz; and the Chief of Counsel in Hamm--this is 3 June 1943-would, we believe, be the defendant Joel.
This letter relates to the treatment of foreigners who are not nationals of occupied countries, if they are arrested and tried under the nacht and nebel order. I would like to read from Page 95 of the English, Page 91 of the German, a short paragraph:
"If the trial against foreigners, who are not nationals of the occupied countries is carried out separate to the trial of the nationals of the occupied countries, then the special provisions in effect for the nacht and nebel trial do not apply, in particular the regulations for the maintenance of strict secrecy. However, the rules governing the jurisdiction are also applicable in this case, in accordance with the circular decrees of 6 February 1942 and of 14 October 1942 and the regulations issued for the amendment of the first circular decree.
"if the trial of foreigners, who are not nationals of the occupied countries, cannot be carried out separately to the trial of nationals of the occupied countries, for reasons pertaining to the presentation of evidence, then the first-named trials are to be treated strictly in accordance with the provisions applying to the nacht and nebel procedure because in this case they are obtaining knowledge of the course of the trial against their comlices."
A copy of the letter was forwarded to the defendant von Ammon. Also on the photostat original, which we are submitting, the initials of Mettgenberg appear. We offer as Exhibit 321, the Document NG-243.
DR. HAENSEL: Dr. Haensel for Joel. In the meantime, I have found out that Exhibit 54, NG-605, of 17 August 1043 refers to the introduction of Joel to his office in Hamm.
MR. KING: We do not have Exhibit 54 presently before us and think rather than at this time we take time out to got it, we will continue and take up that question at the very first opportunity.
THE PRESIDENT: It should be straightened out before we go out before we go much further. It would be easier to have a clear understanding now than to be injected with it later.
MR. KING: Did I understand the Court to the effect that NG -243 was admitted into evidence?
THE PRESIDENT: I haven't ruled, but before I do rule, you said that the initials of Mettgenberg appeared in this exhibit. I would like to know where it appears. It doesn't appear in the English copy.
MR. KING: On Page 95 in the English text, 91 of the German, at the bottom of the page there arc three roman numerals:
V, III, and IV. On the original photostatic copy, the initials of Mettgenberg appear under Column IV
THE PRESIDENT: The Document will be received in evidence.
DR. GRUBE: Dr. Grube for the defendant Lautz. May it please the Court, with respect to the question of Your Honor's as to whether Mettgenberg's initials appear I have to make the following statement with respect to the defendant Lautz. On none of the documents which have been submitted so far referring to the nacht and nebel decrees had the initials of the defendant Lautz appeared Those documents merely contain the distribution lists of the Ministry and there is no proof evident from the documents that the defendant Lautz has actually received these documents.
THE PRESIDENT: That will not be required at this time. It does appear that the letter was addressed to Lautz and he can testify in his own behalf on that point But prima facie we well assume that he got the letter that was addressed to him.
MR. KING : As the next exhibit 322, we introduce at this time the Document NG-257 which is to be found on page 97 of the English text and on Page 92 of the German text. This is a letter from Kaltenbrunner dated Berlin 16 July 1943.
JUDGE BRAND: Isn't that: To Kaltenbrunner?
MR. KING: Did I say "from"? I am sorry. It is a letter to Kaltenbrunner from Dr. Thierack, dated Berlin, 16 July 1945. It concerns the burial by the Gestapo of executed nacht and nebel prisoners. The document is initialled by both von Ammon and Mettgenberg. Those initials appear under the Roman IV on page 98. We offer as Exhibit 322, the Document NG-257.
THE PRESIDENT: Whoso initials did you say appeared on Page 98?
MR. KING : Mettgenberg and von Ammon.
THE PRESIDENT: The document will be received in evidence.
MR. KING: As Exhibit 323, we introduce now the Document NG-281 which is to be found on Page 99 of the English text and 94 of the German text. This document is a note signed by the defendant von Ammon. It is dated Berlin, 2 October 1943. It states that the defendant Lautz has asked that translations of indictments be handed to NNprisoners since it has in the past proved awkward to have them brought to trial without knowing the charges that have been proffered against them. It appears that permission was given to follow this procedure.
We offer as Exhibit 323, the Document NG -281.
THE PRESIDENT: The document will be received in evidence.
MR. KING: We introduce as the next, Exhibit 324, the Document NG-216, which is to be found beginning on page 100 of the English text and on page 95 of the German text. This document is a report of a conference attended either late in October or early in November, 1943 by the defendants Mettgenberg and von Ammon, concerning new regulations for dealing with Nacht and Nebel cases from the Netherlands. Von Ammon and Mettgenberg, as it appears from the document, proposed that the Nacht und Nebel cases be dealt with under the NN Order in the Special Court in Essen. The matter was, as it appears, further discussed with the defendant Joel at Hamm, and a copy of the report was sent to the defendant Engert. The report itself is signed my Mettgenberg and von Ammon. I would like to read a portion of this document which is found on page 102 of the English and at the very bottom of page 98 of the German text. Opposite the "b" in paren:
"While returning from the Hague to Berlin, the undersigned representatives of the Reich Ministry of Justice held on 5 November -- as scheduled -- a conference with the head officials of the Court of Appeal at Hamm. Advocate General Dr. Joel took the point of view that the housing of further NN prisoners, also such of Dutch nationality at Papenburg would be possible and unobjectionable, while Oberlandesrichtspraesident Semler expresses his doubts as to the advisability of housing further NN prisoners, especially those of Dutch nationality, at Papenburg. Because of the heavy load of work carried by the Special Court at Essen, he asked, not to have any of the Dutch NN cases assigned to it. The decision regarding this has been reserved."
THE PRESIDENT: How do you identify Engert with that?
MR. KING: You will find on page 103 that a copy of this document was sent to Engert.
We offer as Exhibit 524 the Document NG-216.
THE PRESIDENT: The document will be received in evidence.
MR. KING: As the next exhibit, 325, we offer, when introduced, at this time the Document NG-282, which is to be found on page 104 of the English text and 101 and pa..e 100 of the German text. This document is a statistical summary of the number of prisoners handled under the NN decree as of November 1st, 1943. The summary shows that 5,240 NN cases have been turned over as of this date by the Wehrmacht, to be dealt with by the Special Courts. Of this number, charges were filed against 430 of these. The report, as shown by the photostatic copy of the original, is signed by von Ammon. We offer as Exhibit 325 the Document NG-282.
THE PRESIDENT: May I inquire who, if any defendants, are included in those as Public Prosecutors at Kiel, Essen and Cologne?
MR. KING: I am of the opinion that none of the defendants in this case were the public prosecutora at either Kiel, Essen or Cologne. However, there is also a reference to the chief prosecutor at the People's Court under Roman numeral II, and, of course, that would be also under III. That, of course, would be the defendant Lautz.
THE PRESIDENT: You referred to the number of convictions as 1230; would that be correct, or would that be the other column 441.
MR. KING: L230 is the sum of both columns.
THE PRESIDENT: No.
JUDGE BRAND: Where is the figure 430; I don't see it.
MR. KING: 1230 your Honor.
THE PRESIDENT: I don't know if you are right about that; that 1230 is among those cases that were filed. It is possible that each case might have included several defendants, and that mi ht account for your inclusions.
MR. KING: If I am wrong about that, I have heard on the conservative side that it would be 1230 plus 441.
THE PRESIDENT: No, I can't see that, Mr. King. It looks to me as though there were 441 cases and a larger number of defendants than in that number of cases.
MR. KING: You are entirely correct; yes.
THE PRESIDENT: The top line bears me out in that, does it not?
MR. KING: You are right.
THE PRESIDENT: Has that been offered?
MR. KING: It has been offered; I don't believe that it has been received in evidence.
THE PRESIDENT: It will be received in evidence.
MR. KING: We introduce at this time as Exhibit 326 the Document NG-203, which is to be found on page, beginning on page 105 of the English and on page 101 of the German text. The Document NG-203 is a letter dated 10 January 1944, and is from the Attorney general in Breslau, proposing a conference on questions and suggesting that the defendant von Ammon come to Breslau for such a conference; and the document also contains a report on this conference, and a letter to the Military Commander in France suggesting still another conference to be attended, as it was suggested by von Ammon. The report on the Breslau conference was made to the defendant Mettgenberg.
As soon as Defense Counsel has completed their examination of it, we will offer the document NG-203 as Exhibit 326.
THE PRESIDENT: The document will be received in evidence. The time has arrived for our usual morning recess, and we will, therefore, recess at this time for fifteen minutes.
(A recess was taken.)
THE MARSHAL: All persons in the courtroom will please find their seats.
This Tribunal is again in session.
MR. KING: Before we resume presentation of the remaining documents in Book 6 I would like to refer briefly to a matter which was raised in court yesterday. In connection with the attempted introduction of the Document NG-720 the court inquired if we knew the present whereabout of the man who signer that letter, one Roemer. We have made inquiry and we find that the person Roemer is Public Prosecutor, in active status, at Munich, and presumably, therefore, available for a trip to Nurnberg in connection with NG-720.
THE PRESIDENT: I might suggest that if it is found to be impractical, or impossible, to bring him to Nurnberg, possibly Mr. Fried could take his testimony, or some other manner, if it is impossible to get him, or it is impractical. Affording an opportunity to defense counsel to cross-examine is the point.
MR. KING: Is the ruling of the court at this time, then, that Document NG-720 will not be accepted in evidence in its present condition?
THE PRESIDENT: Yes, that is the ruling of the Tribunal.
MR. KING: The next exhibit, No. 337, will be the Document NG-247, which is to be found on page 111 of the English text, and pages 105 and 106 of the German text. This is a letter dated, Berlin 14 June 1944, from the defendant von Ammon to the Reichsleiter Bormann. The letter requests that permission be given by Hitler to inform women who have been sentenced to death under the "Nacht und Nebel" order, of their reprieve, where a reprieve has been granted, since the writer considers it cruel to Keep the condemned women in suspense for years as to whether the death sentence will be carried out against them.