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.
The letter, as I said, is signed, or initialed, by von Ammon, and from the indication at the bottom of the letter it is apparent that copies were sent to defendants Mettgenberg and Klemn, as well. We introduce as Exhibit 327, the Document NG-247.
THE PRESIDENT: You referred to the defendant Klemm; I don't clearly understand how he is connected with this Document, Was he the State Secretary?
DR. KUBOSCHOK (for defendant von Ammon): The letter in question is a draft which was not dispatched. I want to emphasize that there is a handwritten note which says, "Not to be sent", that means that if it has been presented to the Minister, the dispatch of this letter was not carried out; and it does not snow any signature, either.
MR. KING: May it please the court, as to whether this Document was actually sent or not, we, as the prosecution, do not know; it does appear, as has been pointed out, that it is draft; but whether, from this draft, a final copy was made, which was dispatched to the Reichsleiter Bormann, we do not know. However, we assume from the notations no the manner in which it came into our possession, that the facts stated in it are approximately correct. We certainly leave it to the judgment of the court as to whether or not it shall be received.
THE PRESIDENT: Apparently it was signed, initialled, by von Ammon. Any question about that?
MR. KING: Yes, von Ammon's initials appear in the lower right hand corner.
THE PRESIDENT: From that we might assume that these are an expression of his view, at least, and might, to that extent, be branding upon him; but if it wasn't sent it would not be branding against either Klemm or Mettgenberg; but in any event I think we can receive the document and they can clear their own situation by their testimony, if they did not get it.
The Document will be received in evidence.
MR. KING: As Exhibit 328, we introduce the Document NG-222. It is to be found on page 112 of the English text, and 107 of the German text. This is a letter dated 21 January 1944 from the Reich Ministry of Justice, to Himmler, Reichsfuehrer-SS, requesting cooperation in the transfer of "Nacht and Nobel" cases originating in France, from the Special Courts in Cologne to the Special Courts in Breslau, the transfer being necessary because of the severe air raids in Cologne.
It appears, from indications on the face of the document, that the letter was routed through the defendant Mettgenberg. It is also clear from the document that the defendant von Ammon has initialed it. That initial appears in the lower right-hand corner of the photostatic original.
DR, SCHILF (Counsel for the defendant Mettgenberg): This photostatic copy shows that in the text, which was originally written by typewriter, several changes in handwriting have been made. These changes in handwriting are very hard to read, and consequently in the German document book several words, and also half sentences, have not been copied. In their place dots have been placed on the manuscript, in the text. Unfortunately, I cannot see whether these mutilations of the text also appear in the English document book.
In order to be able to examine the contents of the document, I respectfully suggest that the original document should be submitted briefly to the defense counsel to complete the copy, because the entire contents of the letter cannot be seen unless it is possible to compare those parts which have been omitted, because they are illegible, with the original.
Therefore, may I ask Mr. King to state whether he is willing to submit the original to us?
MR. KING: Your Honors, it appears from the English text that the translation was made at least to the satisfaction of the translator, who has certified that it is a correct English translation of the German copy.
I think Dr. Schilf can, without any special order of the Court, be permitted to examine the English text and have some help in completing the German copy. Unfortunately, the typists who prepared the German copy did not complete the text, but I think this was because they Aid not take enough time to examine the photostatic copy, which admittedly is somewhat blurred. However, the fact that the English translation of it is complete would seem to suggest that it can be deter mined if enough time and attention is paid to it.
THE PRESIDENT: I want to be sure I understand Dr. Schilf. Is it true that the English translation contains the entire document?
DR. SCHILF: Kay it please the Tribunal, I have just now seen, from Mr. Ring's copy, that the English copy is complete, and the mutilations of the text which can be found in the German document book are not to be found in the English.
May I stress the following? If the English copy is submitted, then only a re-translation from the English into the German would be possible for us, and thereby we still would not have an authentic German text before us. Therefore, I should only like to reserve the right to examine that question again. Possibly a magnifying glass will enable us to decipher the photostat in order to find out whether a re-translation is possible.
The authentic German text, at any rate, is not in our hands, and at this moment I cannot see whether the individual words in the authentic text are so important that a re-translation from the English back into the German would be necessary.
At any rate, considering the fact that the German text is mutilated, I should like to object. I object also against the English text, because we are not in a position to find out whether the English text was translated from the photostatic copy or from the original of the document. If it was translated from the photostatic copy, then apparently the translator was forced to use a little imagination, because the German text given to him was in this mutilated form.
MR. KING: I think it is correct to say that the translator had only the photostatic copy, which Dr. Schilf himself has before him. As a general rule the original documents do not come into our possession. We do, under certain conditions, examine them, but we have to go to the place where they are kept for security purposes, and that is not in Nurnberg.
I have the feeling that if the translator who processed this this document was able to produce an English text which he was willing to certify to as being correct, that that should suffice.
I think the remedy for the situation which has been posed by Dr. Schilf is merely to supply him, to supply defense, with a complete German copy.
It does appear, I am advised, that the omissions in the German text are not of great importance, and nothing of essence has been omitted.
THE PRESIDENT: Well, may we inquire, you have available the photostatic copy of the German document, do you?
MR. KING: Yes.
THE PRESIDENT: Can you let him have access to it for purposes of comparison?
MR. KING: Yes.
THE PRESIDENT: That has been done?
MR. KING: Excuse me; perhaps I didn't understand your question.
THE PRESIDENT: Has that submission been made to defense counsel?
MR. KING: Defense counsel, in the normal course of distribution, get photostatic copies of documents which we submit to the Secretary General. I think, however, that Dr. Schilf is seeing the photostatic copy of this document for the first time just now.
JUDGE BRAND: Your photostatic copy has been translated into English, as you said?
MR. KING: Yes.
JUDGE BRAND: The rules require that the defense counsel have a correct German copy, and they have not yet received it. It seems to me that it is the duty of the prosecution to give them a correct German copy which will conform to the original which has been, as you say, correctly translated into English.
MR. KING: Yes; we certainly appreciate our responsibility in that regard. The only question is whether the document should be adomitted pending the furnishing of such a correct German copy, or withheld until they have received the German translation.
THE PRESIDENT: I would suggest that we withhold the actual admission of it, but leave it in its place among the exhibits, and that examination can be made during the noon hour, no doubt.
MR. KING: I believe Dr. Schilf's objection goes further than a mere examination. I think that he wants, and is entitled to have, a correct German version, in which case it would be several days before that could be prepared and distributed to him.
THE PRESIDENT: I think nothing is gained by having a longer discussion of it at this time. We will receive it conditionally. If the translation into the German is made to his satisfaction within a reasonable time, that will end the matter. If not, it can be brought up again and we will strike it out.
MR. KING: Very well, Your Honor.
DR. KUBUSCHOK: I believe that there is no purpose in making an attempt to translate that document. I ask the Tribunal to look at the photostatic copy. It is impossible for anybody to decipher the hand" remarks. The document, in that handwriting, is absolutely not usable as a court document. Therefore, I believe that we have to raise an objection against the document as such, and that we may well say that any attempt at translation is doomed to failure.
THE PRESIDENT: Perhaps we should see the document.
(Document submitted to Tribunal)
Having examined the document, we feel that in fairness to all parties concerned, the document should not be admitted in evidence.
MR. KING: May I inquire if the Court's ruling on this matter is subject to revision if a photostatic copy which satisfies defense counsel is -
THE PRESIDENT: You may bring the mater up at any time, of course.
MR. KING: The difficulty may be a faulty photographic technique, and about that I do not know. I cannot determine that until I actually see -
THE PRESIDENT: That is a mechanical matter. You can bring it up again after making a further test.
MR. KING: As Exhibit 328 we now introduce the document NG 205 which is the found on Page 113 of the English text and 108 of the German text. This is a letter dated Berlin, 21 January, 1944 from the Reich Minister of Justice, and it concerns the treatment of acquitted NN prisoners. The gist of the letter is that if NN prisoners cannot be released and returned to the occupied countries from whence they came, they are to receive the "mildest grade of protective custody," still held, however, as prisoners. It is apparent that Lautz and Joel received copies of this letter and also von Amnion.
THE PRESIDENT: I wish you would identify them with the addressees of the letter, if you will.
MR. KING: May I ask Your Honor to repeat that?
THE PRESIDENT: The addressees of the letter don't mention their names, and there are three different addresses. I would like to have them classified.
MR. KING: Yes, One addressee being Chief Reich Prosecutor with the People's Court, that would be Lautz.
Another addressee is the Chief Prosecutor in Hamm, and I take it tho date January 21, 1944, gets out of the realm of argument as to whether or not Joel was Chief Prosecutor at Hamm at that time. Von Ammon is shown as having been sent a copy of the letter. That appears on Page 114 of tho English text and 109 of the German. As soon as the defense counsel has finished examining the photostat original we will offer it in evidence.
DR. KUBOSCHOK: The explanation which the Prosecutor has given to the document is not altogether correct. I want to point to figure 1. It is stated there that if a defendant has been found not guilty, or not sufficiently under suspicion, that the prosecutor is to state whether the defendant should be released into the occupied territories or whether he has to be transferred subsequently In the explanation given by the representative of the p Prosecution that remark was not included, which shows that according to this document tho possibility existed that the defendant found not guilty could be released into tho occupied territories.
THE PRESIDENT: The remark of Dr. Kuboschok does not got to the admissibility of the document but to the interpretation of it, I take it. We will read the entire document carefully. The document will be admitted.
MR. KING: The next document is NG 233 and will become when formally offered Exhibit 329. It is found on Page 117 of the English text and 112 -- beginning on Page 112 of the German text. This is the letter dated 21 January 1944 from tho Reich Minister of Justice -I should say Reich Ministry of Justice, to the Wehrmacht and it complains of tho differences in verdicts in the NN cases in Belgium and France as between those handled before the court martial and those NN cases handled by tho ordinary courts.
The letter was sent to the defendant Mettgenberg for approval and initialled by him, also initialled by von Ammon. We offer as Exhibit 329 tho document NG 233.
THE PRESIDENT: You said that the initial of von Ammon appeared on it. Will you make that a little clearer to us?
MR. KING: The initial of von Ammon appears approximately in the middle of tho second page of tho photostat original in the right hand margin. I do hot believe -yes, it is clear that tho initial has not been reproduced in the English translation.
THE PRESIDENT: It isn't here, The document will be received in evidence.
MR. KING: The next Exhibit 330 is the document NG 240. It begins on Page 119 of the English and on Page 114 in the German text. It is a file of letters and notes containing suggestions for tho speeding up of Nacht and Nebel procedure. It is stated that the number of Nacht and Nebel prisoners in custody is increasing because of delays in returning files from the People's Court to tho Special Court. In the first letter which appears, beginning on Page 119, the defendant Joel suggests the following to accelerate tho procedure. I read from the middle of Page 119 in the English and the top of page --- the bottom of Page 114 and top Of Page 115 in the German:
"a) The Chief Public Prosecutor submits record to the Chief Reich Prosecutor only if, according to previous experience or according to directives laid down by the Chief Reich prosecutor, it is to be expected that he will take over, or partly take over, the case.
