Q Witness, may I ask you, did you make a statement before that court under oath?
A No, I was not put under oath.
Q As can be seen from your affidavit, you were a witness in other trials?
A Yes.
Q On the occasion of these latter trial, did you observe whether the defendants were put under oath?
A I was not present when the defendants were called for the first time. I was only brought in as a witness in the course of the proceedings.
Q Witness, in which a defendant in a German trial was put under oath -
A (Interposing) I have no practice, no experience of that kind. I cannot answer that question.
Q Witness, as you have already stated, your defense counsel Kunz, was a selected counsel, and in particular he had been selected by your parents. Is it known to you that the fact, that selected counsel were admitted or that counsel were appointed, that was the case, that was the duty of the appropriate senate?
A That was not known to me.
THE PRESIDENT: The time has arrived for our afternoon recess. However before adjourning for the recess I think I may give an answer to the Prosecution question.
The question was whether the affidavit which has been prepared but which has not been introduced can later be introduced because of some cross-examination under that affidavit. I think the answer is clear enough. If there are other portions of the affidavit which have not been brought out on cross-examination which will tend to corroborate the witness on the points where it is sought to show a contradiction, those portions of the affidavit which have not been entered on cross-examination may be introduced on redirect examination, but in no event after the witness has been excused.
Does that make it clear?
We will recess now.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. GRUBE: I ask for permission to continue the crossexamination.
THE PRESIDENT: You may proceed.
BY DR. GRUBE:
Q. Witness, I am returning again to your sojourn in Brandenburg. During the time when you were in Brandenburg, did you change your cell?
A. Yes.
Q. Several times, you stated before-
(Interposing)
MR. KING: Defense counsel refers to the period when the witness was in Brandenburg. I think it ought to be clear in his references whether he means before the time he was sentenced to death or after the time he was sentenced to death, because he was in Brandenburg both before and after.
BY DR. GRUGE:
Q. I am, of course, referring to the time before the trial.
A. At that time I changed the celloance.
Q. When did you change the cell?
A. I believe it was about the 6th or 7th of December.
Q. You said before that "U.G," was fastened on the cell. Were these initials "U.G." on the cell from the very beginning, or only from the moment when you had been issued the order of arrest?
A. The sign was at the door shortly after I moved into the cell, as far as I could determine when I saw it for the first time. It may have been on the evening of the first day when I returned from the free hour.
Q. On the first dayafter you were brought into the penitentiary?
A. No. I want to reproduct it exactly.
On the evening of the 15th of November we came to Brandenburg, and there we were first provisionally distributed among a number of cells, where we stayed for one night. On the following day we were brought into the cells which were to be our permanent cells. After we had moved into these cells, these cells had the Sign "U.G.", Untersuchungsgefangener, "Prisoner under Interrogation", put on the door. Later, on the 5th or the 7th of December, I changed from that cell to another. The reason was that I was given another task to preform. On the door of that cell too the sign "U.G.", "Prisoner under Interrogation", was put.
Q. Witness, do you know that for prisoners who are in detention pending trial, this designation is really only proper after the order of arrest has been issued?
A. It is my opinion that according to the existing German laws, which also existed at that time, nobody should be detained under arrest any longer without having an order of arrest against him; that is, nobody should be detained longer than 24 hours unless there is an order of arrest. Actually, from the very first day of my stay in the Brandenburg penitentiary until the 14th of December, I was under the same external conditions and was constantly in the hands of the same civil servants, or officials. To what extent, through the receipt of the order of arrest, my conditions or my attributes were changed by the designation in the files I could not find out and had no means of finding out.
Q. Is it correct, however, that this "U.G." sign was at your door already at the time when you were still under arrest or detained by the Gestapo?
A. Since the 15th of November I was in the Brandenburg penitentiary under arrest, and it was the same type of arrest under which all of the other inmates of the penitentiary were.
The treatment was exactly the same as the treatment given to those who had been convicted to a term in the penitentiary.
Q. I am now returning to the point which I had reached before. You told me before that your defense counsel was Dr. Kunz, the attorney at law. Did Dr. Kinz, or did you yourself, during the trial on the 15th of December, make an application for a postponement and give as a reason for it that the indictment was served to you only the evening before?
A. Neither Kunz nor I did that.
Q. Can you give me a sketch of the attitude of your defense counsel during the trial?
A. I stated before that at the beginning of the trial Kunz put the question as to whether the Court would be ready to ask me about my ancestors. Later, during the course of the trial, Kunz did not ask any more questions.
Q. You said before-
A. (Interposing) Bat he stated a further sentence during, the course of the trial, and that was his entire plea. In this sentence Kunz said that "The crimes which the defendant has committed and which he confesses are so serious that only the most serious penalty could be just."
Q. It is correct, however, that this defense counsel was selected by your parents?
A. Yes.
Q. The three other defendants had, as you said before, defense counsel appointed by the Court, official defense counsel who had been appointed by the Court?
A. Yes.
Q. Was the attitude, behavior, or manner of your defense counsel different from that of the other three defense counsel?
A. I believe that Kunz was the worst one of the defense counsel. He did not make any attempt whatsoever to defend me, as I have already told you. The other defense counsel at least succeeded in speaking more than one sentence in their plans. However, they also had only the intention of making the way easier for a clemency plea in some way or other, while none of them tried to give an interpretation favorable to the defendants as to the findings of the Court.
Q. Did the defense counsel appointed by the Court make any pleas during the Trial?
A. I cannot remember.
Q. Did the defense counsel appointed by the Court ask the witnesses any questions?
A. I cannot remember that either. I don't believe so.
Q. Witness, I am now again reading a sentence from your affidavit. You say in your affidavit:
"My defense counsel behaved considerably worse than the official defense counsel, those appointed by the Court. My defense counsel only spoke twice."
Q. What was this essential difference between the two group of defense counsel? Did it lie only in the fact that your defense counsel spoke only one sentence as his plea, while the others said something more?
A I can remember only that one or two of the other three official defense counsels made some more effort in his plea to get something out which was favorable for the defendant. It can also be said during the trial one of the other of the defense counsel made an objection once or asked the Court a question or asked the defendant a question. However, in order to give a really true picture of the course of the trial or to get a true picture you have to imagine that of the entire short period of the trial, the course of the trial, less than one-twentieth of the time was taken up by those things which the defense counsel brought forth.
Q Witness, did these three official counsel appointed by the Court, did they apply for postponement of the trial?
A No.
Q You just said some of the official defense counsel asked the witnesses some question. How did the associate judges of the Senate behave?
A In our trial the associate judges were absolutely inactive, as far as I can remember. In any case, in some way which was recognizable some way or another they did not enter into the trial. It was completely ruled by Freisler.
Q You, yourself, as you have admitted already, appeared as a witness in a trial of the Peoples Court.
A Yes.
Q How did the Associate Judges act in that case?
A Since as a witness I utilized every opportunity to defend the defendant, I had considerable difficulty each time with the Court and in the main I had arguments mainly with the associate judges and they put all kinds of questions to mo and tried to make me -- force me to make contradictory statements.
Q In your case Freisler was the presiding judge?
A Yes.
Q You said before in the main Freisler spoke. Did the defendants themselves have the possibility to speak during the trial?
A They could only answer questions and at the end of the trial they had the right to make a final plea.
Q How did Freisler act when the defendants had the opportunity to speak when they were questioned?
A If the question was answered in the direction in which Freisler desired he had no objection to make but every attempt to bring forth something in defense, which efforts were made by some of the defendants, he objected sharply and immediately interferred with the trial.
Q In what form did Freisler interfere? Did he do it in a quiet manner?
A The manner changed as his mood did. Sometimes it was cynical and sometimes excited. Sometimes it was calm.
Q During the other trial when you present as a witness was Freisler the Presiding Judge?
A No. Stier was the Presiding Judge.
Q How did Stier act as Presiding Judge?
A Stier was usually calmer than Freisler.
Q I am now coming to another point: witness, you said before the execution of the death sentence was postponed for six months at first. After those six months had elapsed the execution was ordered postponed again. Do you know that the defendant Lautz during the second postponement of the execution remarked to Prof. Dr. Wirth that he would make every effort with all of the means at his disposal that you will be pardoned because he regarded it as inhumane to torture a man for such a long time?
A I don't know that.
Q I now come to a final point; before you said that on the 20 July 1933 -- 20 April 1933, 33 political prisoners, so-called death candidates, were executed?
MR. KING: I wonder if there's a mistake in dates or a misinterpretation. Is it April 20, 1943 or is it April 20, 1945?
Q I asked if you had stated before that on the 20 April 1945, 33 political prisoners, so-called death candidates, were executed.
Witness, do you know that in the case of these 33 candidates for death they were all people whose death sentences had legal charged, they had been refused a pardon and the execution of the death sentence had already been ordered by the Reich Ministry of Justice?
A I can answer this question only that a large number of these 33 people had already for a relatively long time been in the Brandenburg penitentiary as candidates for death. About the progress of their clemency plea and about the legal force or the illegality of the order for execution I cannot say and give a judgment here. Also I do not know about these occurrences.
DR. GRUBE: I have no further questions.
DR. SCHILF: Dr. Schilf for the defendants Klemm and Dr. Mettgenberg. Witness, you described the aims which the European Union had. The decisive thing was, if I understood you correctly, that for the time after the war there should be an organization, -- there was an organization in existence which also had -- could have taken up connection with foreign countries again. Do you know the so-called Dreishauer Circle?
A No.
Q Do you know a Count Helmut von Moltke?
A No.
Q A resistance movement which after the publications of recent times had the same aims?
A I don't know about it.
Q You spoke about it that between your organization and groups of foreign workers who were working in Germany information was exchanged. I would like to ask you, professor, to say something about the nature of the information?
A The report concerned mainly information about the military and political situation in Germany. First, those foreign workers had very little opportunity to find out about the course of the war and events in the rest of the war; secondly, the German news were, of course, absolutely insufficient a source of information.
Q That would mean -- excuse me. Have you finished your answer?
A In addition, the foreign workers were interested in personal news and in new regarding information from their home countries and they were interested in forwarding their letters and such news referring to their home countries from here.
Q That would mean that news was mutually exchanged?
A No. Mainly we informed them about the general situation and also on the basis of such information which we received. We warned them if in certain camps the Gestapo was making searches and raids and the news which they themselves could give us, was subordinate to us and they went to resistance movements in their own home countries.
Q Did these groups of foreign workers who were probably in the main working in the defense and war industries, did they give you -- did they report to you personally but also to all of the members of the organization? Did they give you also news and information about their work and about things which they might have found out in defense industries -armament industries?
A The distribution and forwarding of such information was not the task of our organization. The dissemination of such information -- and I spoke only with the leading delegates -- negotiating only with them. In those negotiations such questions were not discussed at all.
Q The news thus would -- were given by you to the groups of foreign workers thus referred to the reports on the general situation and personal news?
A. The information which we gave to the foreign workers was supposed to serve only the purpose to inform then as objectively as possible about the actual situation and the developments.
Q. You said before, witness, that the foreign workers were interested in also getting news about their relatives. If they wanted to get this news, they had to approach you on their part and also to give you news in general?
A. About special communications and news between relatives, I don't know anything about that. It is possible that it was going on, too. In practice it was as follows: Certain people of our group had regular meetings with certain members of the foreign workers' groups and on this occasion they received letters which were then forwarded to the states that were concerned with our contact man, but then I can say that it was a mutual exchange of news. It was an exchange of news and information between the foreign workers in Germany and the resistance groups in the occupied countries.
In accordance with the information you have given us about the aims of your group and relations in regard to what you said that high treason in the legal sense of the word could be used by you only if you were aiming at a violent exchange - I want to say in a general way - of the existing conditions. If that is so, it is questionable whether you, as a so-called resistance group, could be designated as a resistance group at all. You told us that it was a resistance group; on the other hand, you said that the sentence by the People's Court was regarded by you not as legal because your aims were concerned with the time after the end of the war and constantly you did not aim at a broader basis of resistance among the German people. I would like you to clarify this seeming contradiction.
A. I said that the court before which we were tried was not in a position to pronounce a legal sentence to give us justice. In spite of that, there was a possibility that the defense counsels who worked in this court would utilize every possibility which could speak in favor of the defendants.
The only thing that I have to state is the fact that the defense counsels did not make any use of the possibilities which existed and your question as to the character of our group, describing it as a resistance group, I leave that to the judgment of history.
Q. I may point out that you still owe me an answer, professor, and only in regard to the following; that you stated you believed that you had not committed high treason.
A. I said already once before, high treason was committed by those actually who were sitting on the judge's bench. They committed high treason on the German people and not we. For that reason it is entirely unimportant under what points of view our activity was viewed by these gentlemen. It was of course important for the defense. The defense had to look for possibilities to defend the defendants according to their legal concepts.
Q. In the course of the trial brought against you, you must have been informed about the legal regulations. Here you spoke about right - justice - and you said that the gentlemen on the judge's bench were the actual traitors who committed high treason and not the defendants. I would like to ask you by this hint: do you want to make a difference between justice and law? Do you want to imply it? My first question is: do you know the regulations in the laws about high treason which existed at that time, during the time of your trial?
MR. KING: Your Honors, the witness is a professor of chemistry and not of law. I suggest that the latter question be withdrawn.
DR. SCHILF: I am not trying to contest that, but the witness has made a remark about right and law and he said it in an antithetical way. He said the judges on the bench were the traitors who committed high treason; the defendants had justice on their side. The justice is, in a broad way, perhaps natural law or human law or God's law.
BY DR. SCHILF:
Q. I would like to ask you whether here the concent of law or of right, which you had at that time and which you obviously still have today, was in accordance with the law which existed at that time, or whether that differed in your opinion with the law.
Therefore, my concrete question is, did you at that time know the regulations of law? Did the provisions governing high treason become known to you?
A. I would also like to state that I am not a student of law. My knowledge of the provisions of the law were incomplete - were as incomplete as they are of the person who is not a student of the subject. However, I would like to point out that the laws have the purpose that justice exists and I was of the opinion that these laws, during the Nazi time, did not serve that purpose.
Q. In that way you have already answered my question. I would like to ask you to state whether in connection with your trial, at that tine in Particular, not theoretically because you were persecuted by Nazi justice administration, did you have knowledge of the laws governing high treason?
A. Actually, the Gestapo answered that question for me. The Gestapo gave me the definition, which I repeated before, that a highly treasonable action, an action of high treason, is an attempt by use of force to overthrow the existing government and to bring about a new government.
Q. Your conception of high treason which exists today in your mind is evident from your remark which you just made.
A. It can very well be that I already heard definitions of this concept before.
Q. But they did not influence you, according to what you just told us now - the conception of what the legal definition of high treason was at that time.
A. Yes.
Q. I am again returning to the Kreisauer Circle, which is not known to you and about which you did not hear about later either. Do you know the minister, Dr. Poelchau?
A. Dr. Poelchau's name I heard for the first time when I was a prisoner in Brandenburg.
Q. Did you hear about his attitude toward the regime which was empowered at the time or his membership in the Kreisauer Circle, which I mentioned? Did you hear about it at that time?
A. About his attitude toward the Nazi regime I was informed, but not about his membership in the Circle.
Q. Do you know that there were quite a number of resistance movements which had similar aims as yourself, that the realization that a revolutionary movement against the existing regime was impossible and that one had to prepare for the time after the German surrender?
A. I always hoped at the time that we would get to know a number of groups of that type through our organizational work but unfortunately this was not the case. Only later did I find out that in Germany there did not exist a larger resistance movement.
Q. Did you later find out that a large number of members of the similar resistance groups were also sentenced to death for high treason?
A. I did not know that at the time.
Q. And not later either?
A. Later, yes.
Q. May I ask you to give us a limited number or some names of these resistance movements which had similar aims or the same aims?
A. I can't do that.
THe PRESIDENT: Dr. Schilf, your question seemed to assume that he has admitted that he was connected with a resistance movement or connected with a resistance group. Now, it may be that his answers were to that effect, but I didn't so understand them, and I just want to get that straightened out, if I may. I think he has denied that there was a resistance movement. It was only something to bring about reforms after the war was over. Can you bring that out more clearly?
MR. KING: Your Honor, this may be the time to ask the witness to clear that up. I will only say that I want to afford him an opportunity to define what he means by "resistance movement" in re-direct. However, I have no objection if you wish him to clear it up at this time.
BY DR. SCHILF:
A. Did you understand the question?
A. Yes. Should I answer the question as to what I mean by a "resistance movement" or "resistance group"?
A. I mean by "resistance covenant" every type of political activity by opponents of the Nazi regime when the Nazis were in power. The resistance movement has as its final aim, from an overall point of view, the overthrowing of the Nazi regime. Therefore, the practical work of the resistance movement in the course of time, and especially with the beginning of the war, changed considerably in its character and in its form. When the war broke out, it became apparent that the attempts to break the Nazi regime through the German anti-Facists Forces had failed, and that a stronger power would bring about the defeat and surrender of the system. For that reason, the different groups of the resistance movement then changed the direction of their work and had to adjust themselves to new conditions. Some groups tried to help do their part to shorten the war by giving direct did to the enemy troops. Other groups started a somewhat more active political group, which is in our case, was aimed at the preparation of a political condition after the collapse. I believe that during the entire course of the war no group of the German resistance movement made preparations for high treason in the proper sense of the word.
However, there may have been many groups who did commit some socalled treason, Landesverrat as distinguished from Hochverrat, but this designation, too, is not a description which is taken from the provisions of the laws which imply that the Nazi regime applied these laws rightfully. This pre-requisite had not been fullfiled as you know.
Q. May I ask you, professor, to answer the second question which the President of the Court repeated, namely, your relationship to other resistance groups at the time. Tell us what you found out later on about the other resistance groups? I believe I repeated your question correctly?
A. Yes. During the war, during the existence of the organization, European Union, I did not have any closer connection with other resistance movements. Such contact was being prepared and the Gestapo never found out about it either until after the end of the war. I was able to get some inside information as the extent and nature of the activities of German resistance movement during the war and also during my time in the Brandenburg Penitentiary, especially after we were liberated.
I made the acquaintance of many members of such resistance groups about whom I now know nothing about.
Q. Unfortunately, you cannot mention any name, at least, you do not remember any name at the moment, of other resistance groups?
A. I can mention the names of several very well-known groups of the German. Resistance Movement, but not such groups who entire activity was close to that of the European Union. Those I did not quite know.
Q. I again have to refer to the first question. In your definition of the "Resistance Movement" in general, you said that the most characteristic clement was the overthrowing of Nazism, do not want to come to a legal argument, but I return to this because you touched upon it at the end of your answer. Do you believe that the overthrowing of the then-governing state government in general is regarded as high treason in popular language?
A. According to that, every human being who during the Nazi regime was an opponent of the Nazis, in his won mind, would then be considered a traitor.
Q. Professor, we shall not argue about it. If he were active, he was a traitor.
A. It depended upon the manner in which he was active and what he actually undertook. That would determine whether it was high treason or not.
Q. We shall not argue about it because actually, it is a legal argument.
MR. KING: Your Honors, this line of questioning is getting into the realm of legal interpretation which I submit the witness is not qualified to make. I object to further questions along this line.
THE PRESIDENT: I think Dr. Schilf make the same admission a moment ago. I think he will not pursue that matter any further.
Q. I come now to answer question, and that is your description of what you know about the prison murder in Sonnenburg in January 1945, and the Penitiary in Brandenburg. You only told us about it very briefly. I would like to ask you, as far as you remember, to state the details.
MR. KING: I do not believe the witness mentioned the murder of any political prisoners in January 1945. Could that month have been April? In other words, may I have the question repeated which Dr. Schilf had just put to the witness? Was it January or April to which he referred?
THE WITNESS: The question of Dr. Schilf?
MR. KING: Was the question Dr. Schilf asked directed to January or April 1945?
DR. SCHILF: The murder occurred in January. The witness heard about it in April, if I understood him correctly.
A. No. This mass execution in Sonnenberg happened in January or February. I do not remember exactly. It became known in Brandenberg very quickly. I heard about it one month after it happened. That is February or in March.
Q. May I ask you to answer my question? What details did you find out about?
A. The Sonnenburg Penitentiary was situated, at this time, directly at the front line, and we found out that Director of the Penitentiary asked the Wehrmacht, the armed forces, to give him help in order to transport the prisoners to another place. Thereupon, the officer of the Wehrmacht stated that this was not a matter of concern to the Wehrmacht, but a matter for the Justice authorities. Thereupon, the director of the Penitentiary returned to his superior authority or some other office, I do not know, and the result was that a small division of SS people appeared and shot 750 political prisoners with revolvers.
Q. It was known at that time already, that it was the SS who shot the prisoners?
A. Yes. That is correct.
Q. Did you also find out at that time, that all of the officials of time Justice department, when they were asked to take part in this as an audience of the so-called liquidation of prisoners, that officials of the Justice Department refused to do so unanimously?
A. I did not hear anything about that at all.
Q. Witness, did you not hear anything about the justice officials refusing to take part in this catastrophe?
A. On the contrary, that I did not hear. I heard part of these officials were fanatical Nazis. Of course, they could not state or boast they refused to take part in it. I believe you have already forgotten how things wore at that time. It would have rather unusual if such officials made such a report publicly at that time.
Q. What I just told you is based on a piece of evidence which will probably be introduced by the Prosecution in this trial showing these unanimously refused to take part in any way in this undertaking of the SS at that time. That explains my attitude about the past.
A. But several officials in Brandenburg took part in executions with a knowledge of their authority, especially Hauptwachtmeister Lange, who almost regularly with a commando of four or more officials witnessed the shooting of a convict on the 20th of July.
Q. Witness, you spoke about executions. May I point out to you, you spoke about executions; I spoke about executions; there is a difference according to the law which existed at that time. Did you want to say something similar, or that it was something similar to Sonnenburg; that it was distinguished from Sonnenburg, wasn't it?
A. I am only stating that the employees of the penitentiary, that employees of the Justice Department, and not executioners conducted executions, carried out executions with the knowledge of their superior office, not only once but repeatedly they carried out executions.
Q. Witness, with the knowledge of their superiors, as you said; is that a conclusion you draw?
A. At least with the knowledge of Oberregiecungsrat Thuemmler.
Q. But that is the superior officer within the penitentiary.
A. The correspondence Thuemmler had with the Reich Ministry of Justice is not known to me.
Q. But I am asking you what you mean by superior offices; Oberregieungsrat Thuemmler was a director of the penitentiary. You further said that in your opinion a similar fate at the penitentiary happened because an illegal group took part in it. I would like to ask you to make some further statement because of this conclusion which you drew, for the reasons which you put the basis of this conclusion.
A. In Brandenburg there was an illegal organization of political prisoners already for many years. This organization had a very strong influence on a number of prisoners. This was possible because the officials were corrupt to such an extent as I never believed possible, never in my life believed possible. The lowest officials were still the most decent ones. The higher the position of the official the more he enriched himself by means of public property and he stole what he could.