These questions were, however, examined in the Wehrmacht branches because the OKW was concerned with the practical application of the decree -- correction, as such it was not concerned with the practical application of the decree. The supervision of the administration of justice was a matter of the Wehrmacht branches.
Q. Do you still remember that the OKW only knew of the decree of the 7th of October 1943, and only at that time ordered regulations, executed orders for the Nacht und Nebel decree in the Netherlands?
A. The exact date I cannot recall. I know, however, that the handling of the decree in the Netherlands was different than elsewhere.
Q. And the fact that the Nacht und Nebel decree was only about three years later, after it had been promulgated, introduced into the Netherlands, is that due to the circumstances which you have stated that especially in the Netherlands among the military commanders, that is as you said the generals and judges, special resistance existed?
A. I believe so.
Q. Other motives you cannot state at the moment?
A. No.
Q. I have one final question, witness. Did the referenten, department heads of your office also in subsequent times repeatedly or frequently meet referentens of the Administration of Justice, the Ministry of Justice in order to effect a solution for the defendants under the Nacht und Nebel decree-- to discuss these and to vot upon them; to coordinate them?
A. As far as I know, there were a number of discussions; they served naturally the purpose of improving the decree. In addition, there were conferences between the Wehrmacht branches and the judges of the Administration of Justice. I do not know details about this because we did not participate in it, we of the OKW.
Q. You said for the improvement of trials.
A. Yes, in the Rechtsstaatlichen; in the legal sense.
DR. SCHILF: Thank you. I have no further questions.
BY DR. HAENSEL (Attorney for Defendant Guenther Joel):
Q. In your affidavit, which my colleague Dr. Schilf has already quoted, you mentioned you knew the defendant Joel personally. I suppose -
A. For along time.
Q. Do you know for how long?
A. Since about 1934.
Q. At that time you were colleagues in the Ministry?
A. I was in the Ministerialrat in the Ministry of Justice and Joel was a Oborstaatsanwalt.
Q. But he was also referenten?
A. Yes.
Q. In the Ministry?
A. Yes.
Q. In your department and outside of it, in the Ministry of Justice, you spoke with him frequently and saw him and exchanged opinions so that you have some pictures of his personality?
A. We had a few official contacts, but I knew him personally and knew him also through the descriptions which other members of the Ministry of Justice gave me so that I have a picture of him.
Q. According to this are you of the opinion that he would have been a suitable man to execute the Nacht und Nebel decree? Can you imagine that the Minister or the leaders of the Ministry would have entrusted him with such a function?
A. I cannot answer that question.
Q. Was he entrusted with such a function?
A. In the Ministry, as far as I know, not.
Q. Did you ever discuss with him the Nacht und Nebel decree; executions carried out during the war?
A. No.
Q You want to say during the war, until 1945?
A I saw him.
Q Where?
A Here in Nurnberg.
Q Here in Nurnberg; could you speak with him?
AA little bit. I only heard him as a general public prosecutor in Hamm. He also in his penal institution had people who had been condemned according to this decree.
Q So, that was later?
A Yes.
Q After 1945?
A Yes.
Q Before that, did you also -- did you not hear about his activities in Hamm directly through him?
A No.
Q This is probably the reason why you mentioned the name of your Joel in this affidavit?
A Yes, because otherwise -
Q Because otherwise one could not understand why you out him in this affidavit, mentioned him in this affidavit?
A The reason was the following: I wanted to say Joel, the general public prosecutor Joel, whom I know well, confirmed to me that these cases were tried in accordance with law and justice.
Q You meant to say as general public prosecutor Joel as well as all other general public prosecutors was obligated in accordance with the law?
A Yes.
Q Did Joel among these general public prosecutors occupy any special position? Do you want to say, no?
A No. I know only about the fact that in an unusual he also took the part of law.
Q This should not enter the transcript. Only in order to see the significance Joel had -
THE PRESIDENT: This examination is being carried on to rapidly for the translators to follow it. Please go a little bit slower, and give a pause between the question and answer.
Q You said the work on the nacht und nebel case by the court and by the prosecution did not take place throughout Germany?
A No. The Ministry of Justice had entrusted a member, a number of courts for caring for these cases, in the West and later on in the East.
Q And, you think that Hamm was among these?
A That I do not know. I know only or rather I believe, to know from what Joel told me, that in his penal institution such condemned persons were kept.
Q But you do not mean to say that Joel is public prosecutor had anything to do with the immediate trials, but only as the secondiary?
A That is right, that is how I remember it.
Q The sentencing, I believe that the Court would be interested in this. The sentensing was done by the penal court, that is, the court of the first instance, and then the general public prosecutor, was he active at the first instance or at the higher court, at the higher instance? Joel as general prosecutor, did not have anything to do with those matters immediately, directly, but only possibly as superior of the actual prosecutor?
A Yes.
Q Do you know whether a court in the district of Hamm dealt with the accepting of nacht und nebel cases at certain times had been commissioned to deal with them, or do you not know about this? Was that outside of your branch in the Wehrmacht?
A Yes.
Q Now, in conclusion do you just want to tell me, you told us that you know Joel. What impression did you get of his attitude toward the execution of law and justice and regarding his defense, his position against illegal treatment?
A The Oberstaatsanwalt Dr. Joel, in the Ministry of Justice, belonged to the so-called central prosecution. As far as I remember this office, to put it more precisely, the division of the Ministry was created about 1934. The activities of this central prosecution, I could not observe immediately myself. At that time I was Ministeral Councelor with the legislative division for penal law. However, in the Ministry of justice we discussed the Zentralstaatsanwaltschaft. After the year 1933, it came about that the local prosecution was not also in a position toward the very powerful political influences to get through with their legal points of view, and the idea in the creation of the central public prosecutor was probably the following: Namely, to have especially difficult cases in which our position on the part of the influential circumstances could be counted upon to have this met by the greater influence of the Ministry of Justice, the greater authority of the Ministry of Justice, I visited Joel sometimes, looked him up. I always liked him especially well because of his extraodinary brightness and openness. Also because of his sense of humor. And, then he told me about his trials. From this it became apparent, resulted that he was fighting a very stiff battle, stubborn battle against political influence of the party and of the affiliated organizations of the party. He then reported how during his frequent trips through the country, he had negotiated with gentlemen who were politically influential, and the direction of his activity was also to defend the rights and law toward political influences. The same opinion of him I heard from many other people in the Ministry of Justice. Above all that Joel spoke very openly and bravely; that applied also toward his superiors.
DR. HAENSEL: No further question.
BY DR. BRIEGER:
I would like to correct a mistake in the translation. I have just been informed that the translator who otherwise is very good, translated the name Gerichtscheor as a gentlemen of the court. She could not know that this word is a very difficult technical term in criminal law of the Wehrmacht of the armed forces.
In my opinion, the the expression could be translated something like this: There is no regional chief of judicial power of the army. The Berichstsheer functions, as the witness will know the details much better than I and of his opinion which had been handed down within his army sphere of competence, and that he had to make a decision as to whether he affirmed or denied this sentence.
MR. KING: May I inquire if ther is further cross examination at this time?
DR. SCHILF: May it please the Court, I ask to be excused if I put another question to the witness. During my previous cross examination, I referred the defendant Mettgenberg, that is how I reported. In regard to the defendant Klemm, I would like to ask a question which in my opinion the witness can answer yes or no. The question. Witness, did the nacht und nebel decree, did the agreement of the consent of party chancellory before the regulations were issued, not even asked; and in answering it is question I would like you to distinguish between Bormann as secretary of the Fuehrer, was active in the headquarters and the party chancellory which was in Munich.
THE PRESIDENT: You told him to answer that with yes or no.
DR. SCHILF: I think that the court agrees that you should answer the question.
WITNESS: Unfortunately, I can answer this question neither with yes nor with no.
THE PRESIDENT: Does any other defense counsel desire to further cross-examine this witness? Does the prosecution desire redirect examination?
MR. WOOLEYHAN: Yes, Your Honor, there are several minor matters to which the prosecution would like to call attention. I anticipate that would take practically fifteen minutes.
THE PRESIDENT: Then we shall adjourn at this time until tomorrow morning at 0930.
(The Tribunal adjourned until 24 April 1947, at 0930)
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 24 April 1947, 0930-1630, Justice Carrington T. Marshall, presiding.
THE MARSHALL: Persons in the courtroom will please find their seats. The Honorable, the Judges of Military Tribunal 1.
Military Tribunal 1 is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Marshal, you will please ascertain if the defendants are present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of defendants Rothaug and Engert, who are absent due to illness.
THE PRESIDENT: Proper notation will be made.
RUDOLF LEHMANN - Resumed.
RE-DIRECT EXAMINATION BY MR. KING:
Q. General Lehman, just two or three questions. I wasn't quite clear in my own mind yesterday how many Nacht und Nebel cases you had actually seen tried before the civil courts operating under the jurisdiction of the Reich Ministry of Justice. Could you tell us a little more bout that new?
A. I can, unfortunately, not name the figures. The contact between the Ministry of Justice -
Q. I wonder if we may have that answer repeated?
A. Yes. Exact figures I can, unfortunately, not state. The contact between the Ministry of Justice and the Wehrmacht in Nacht und Nebel cases was between the branches of the Wehmacht and not with the OKW, so that I did not have an exact insight into the matter.
Q. Did you ever attend any trial before the Special Courts of a Nacht und Nebel case?
A. No never.
Q. So that your testimony yesterday was in relation to the theory of Nacht und Nebel and not to the actual proctice of the trials before the Special Courts?
A. In my opinion, which I stated yesterday referring to the carrying out of the Nacht und Nebel decree as we had intended it, however, through conversation and through reports of ay referenton, my department heads, I naturally got a certain insight into the handling.
Q. You stated yesterday that one of your original objections to the Nacht und Nebel program went to the fact that it was a secret program. Let me ask you this, you are not under the impression, are you, that the Nacht und Nebel cases before the Special Courts were conducted in open session of the courts, are you?
A. Certainly not, for it was the purpose of the decree that these matters should be accomplished in secret, and that was just the very reason for my misgivings about the decree. I do not believe that the Nacht und Nebel cases were tried in public.
Q. Now, you also stated yesterday that your misgivings were somewhat alleviated when the Reich Ministry of Justice agreed to assume the trial of Nacht und Nebel cases, because you thought at that time that the cases would be heard before a judge. Now, in connection with that statement I would like to ask you several questions. General Lehmann, would you consider a trial in which the judge's sentence could not differ in any case from the recommendation of the Prosecutor, would you consider that a fair trial so far as the accused was concerned?
DR. KUBOSCHOK: I object to this question. It is a question of opinion of judgment, and not of fact.
THE PRESIDENT: Opinions couldn't differ on that, so the objection will be sustained.
MR. KING: Your Honor, I do not wish to take issue with the Court's ruling. I only point to Document NG-226, to be found in the English Document Book 6 at page 50.
THE PRESIDENT: What is the number again?
MR. KING: That was page 50 in the English document book, page 73 in the German,
THE PRESIDENT: Which English document book?
MR. KING: English document book 6. I point to this paragraph which related to the conference which Freisler originally had with General Lehmann in which he says the following.
"I conducted the preliminary proceedings of that time myself, together with Ministerial Director Lehmann of the OKW. They were considered top secret state matter, and have therefore not been recorded in the files then. It has therefore not been recorded either, why these cases were not assigned to the People's Court to be dealt with."
Then, and this is the ccucial sentence -- "This was done because it had to be made quite sure that under no circumstances any other sentence than the one proposed by the Prosecutor should be passed, neither in the verdict nor in the actual penalty."
It was in connection with that sentence that I asked the witness the question. It seemed, while I agree with the statement of the Court that no reasonable man could differ as to the answer, I wanted to be sure that the question was properly before the witness.
THE PRESIDENT: The statement that has just been read speaks for itself, and the opinion of this witness on that doesn't render any material aid to the Court.
MR. KING: One other point. The witness has testified that he was a German lawyer, and in fact, in the Ministry of Justice. It occurred to me that it might be proper to ask him that question as an expert on German law.
THE PRESIDENT: German law would not control anything as plainly ethical as that. That is, I am speaking for myself when I say that and not deciding the case at this time. But that document that you have just read can be interpreted by the Court without the aid of this witness.
BY MR. KING:
Q. Passing to another question, would you consider a trial fair if the accused were denied ever an appointed counsel?
A. No. The defendant must have been given the possibility of a regular defense, as it should be.
Q. Would you consider the continued detention of acquitted NN-prisoners as slave laborers forced to work in munitions industries in accordance with International Law?
DR. KUBOSCHOK: I object to these questions. They are all questions of opinion and judgment.
MR. KING: It is the opinion of the witness that we seek to elicit, Your Honor.
THE PRESIDENT: We permitted you to ask an opinion which had some basis in German law, but this goes beyond that, and we will sustain the objection.
Q. As a former member of the Reich Ministry of Justice before you assumed your position with the OKW, and as an wxpert in some fields of German law, would you consider the general principle that witnesses be denied the accused in accordance with German law?
A. I do not believe that the basis of this question is in accordance with the decree. The decree says that in Germany, witnesses can be examined only under certain circumstances; that examination of witnesses was forbidden altogether is not written in the decree.
Q. For the moment, let us not discuss the decree. I am talking about the practice in the matter, and would you answer the question quite apart from what may be stated in the decree. Would you consider it a fair trial if the accused in a trial before a German court were denied witnesses for any reason whatsoever?
A. If it would be forbidden altogether to the defendant to appeal to the testimony of a witness and in that way to prove his innocence, then that would be contrary to German law; for it belongs to a defense that the defendant must be granted the right to make his own objections to the indictment and to prove them through evidence.
Q. Witness, may I ask you if you saw the defendant Joel or talked with hem, after say, the middle of August 1943 until sometime after the war?
A. As far as I know, I saw Dr. Joel after he had become General Public Prosecutor in Hamm. I did not see him any more during the war. I believe that I only saw him again in Nurnberg.
Q. And from your earlier statement this morning, I take it that it is clear that you did not attent any trials under the defendant Joel's supervision as Chief Public Prosecutor in Hamm so far as nacht and nebel cases are concerned?
Is that correct?
A. That is correct.
Q. In connection with the question which was raised yesterday regarding the nacht and nebel program in the Netherlands, I have just one or two questions: Do you know a man by the name of Huelle?
A. Would you please repeat the name again?
Q. Perhaps my pronunciation is not the best. The name is Huelle: H-U-L-L-E.
A. Huelle? Yes.
Q. Was he a member of your staff?
A. Yes.
Q. What position did he occupy? What were is duites?
A. Dr. Huelle was Ministerialrat--Ministerial Councillor--in the OKW, and a member of Department I of my office.
Q. In connection with the Netherlands' nacht and nebel program, do you recall a letter which Huelle wrote in connection with that program which is dated the 23 of June 1943? I show you a German copy of that letter for the purpose of possibly refereshing your memory.
(Witness is given letter)
While you are consulting that letter, may I read a portion of it about which I later wish to ask you a question. This letter was written by Huelle to von Ammon in which he says: (I think you can find the place in the German copy before you).
"We are not confronted with the problem as to whether or not this practice should be replaced by the prescribed procedure or whether or not we should extend the procedure followed in the Netherlands' to other countries for the directive which is valid."
That is, to forego a trial in Germany.
DR. KUBOSCHOK: I object to this question. This complex of questions was not a subject of the direct examination and cannot be a subject of the redirect.
MR. KING: The question concerning the nacht and nebel program was most certainly raised in cross examination. Because it was raised in cross examination it is necessary to refer to it in redirect.
THE PRESIDENT: We overrule the objection.
BY MR. KING:
Q. Continuing reading from Huelle's letter:
"The practice of the courts in Germany, so far as I can see it, has let to it that the culprits are either executed or detained in a concentration camp until the of the war. Not only the guilty ones, after serving their court sentence, re taken into protective custody by the police, but also those who are innocent or not sufficiently suspected and who have had a glimpse of the procedure. Neither the one or the other way of treatment by the courts constitutes a deterrent of the inhabitants in the occupied territories because these procedures are conducted with a total exclusion of the public. Besides, their supervision ties up personnel on all levels of the administration of justice."
Now, there are other portions of the letter which I will not read. I only ask you, based on what I have read, this question: There is evidence in the letter that Hulle discussed the old problem with you before the letter was written. My question is this: Do you agree substantially with the statements which Huelle makes in this letter?
A. I just looked through the letter again. I considered how the letter came to be written and what motives we had. The signature is that of Dr. Huelle who also wrote the letter. However, it was done without any doubt in agreement with myself, so that I am responsible for this letter, as I was responsible for everything that was done in my department. I believe that the letter which I had not though of for a very long time any more came about to be written in the following way:
Yesterday, I tried to describe to the Tribunal that we had serious misgivings against the entire NN-decree, and that one of the main misgivings was in regard to the exclusion or the cutting-off of the defendants from the public. In the pre-discussions, before the decree was issued, the jurists who took part in these discussions finally came to the conclusion that since it was the special wish of the Fuehrer they could not change this any more; however, that perhaps there was something good contained in this provision also on the other hand. We said to ours lves that if the defendants were not sentenced in a public hearing, the entire point of view of the deterring nature of such a case by means of the sentence was eliminated of necessity. The necessity of the deterring influence, especially in the occupied territories, brought about very heavy penalties. If not the sentence was kept secret, the entire idea of a deterrent by means of a sentence was eliminated and thus the possibility was given in a secret trial to judge the cases more leniently than it would have been possible otherwise in the occupied territories. One of the participants in these discussions expressed this idea in the following words:
The cutting off of the public is, so to say, the price which we have to pay for the possibility of a more lenient sentence.
A. (Continued) We were also under the impression that during the entire time, first time, in this sphere of the general administration of justice, the cases were handled accordingly; it was especially the impression which the judges of the Wehrmacht gained, the judges of the armed forces in the occupied territories. If I still remember correctly, in several cases the practice followed by the general courts rather in the sphere of the general administration of justice became more severe. I cannot cite individual cases to prove this point any more, for I am speaking only from my memory without any documents. This letter was supposed to have the purpose to emphasize again that the main effect of the decree, also in accordance with Hitler's will, may in the conviction of the suspects, in the transfer; correction, in the transfer of the convicts, to Germany so that a considerable increase in the number of death sentences was not what was intended by the decree. Now it was difficult to express this because the criticism of the measures taken by Minister Thierack we could not undertake. The relationship between Minister Thierack and the Military administration of justice was in the period under discussion very tense. We were very much annoyed that Minister Thierack by way, via, Bormann, made the attempt to undermine the administration of justice by the Wehrmacht.
Q. Witness, I have no desire whatsoever to cut you short on any explanation that you feel necessary to this letter. I only remind you that the original question was: Do you agree with the substance of this letter?
A. Yes, for it had as its purpose to Thierack, who was supposed to get this letter, to remind him that the necessary deterring nature was achieved already by the transfer of the defendants to Germany, and that we did not desire to render more severe sentences in practice. I believe that particularly the experts of the Ministry of Justice pointed out this to us because as far as I know, within the Ministry of Justice, there was strong opposition against the severe measures taken by Thierack and the severe line followed by Thierack; and this letter was supposed to support those gentlemen in the Ministry of Justice who were for a more lenient judgment of these cases.
Therefore, I affirmed the contents of this letter, and I believe that I portrayed the context correctly. Of course, it is possible that the referenten, the department heads, had had a more exact knowledge and that my statements would have to be corrected, but on the whole I believe that what I have said, what I have stated is correct.
Q. Thank you. You have identified the letter which is marked at the top with the number NG-204; is that correct?
A. Two hundred and four.
Q. We will offer this letter in evidence as Exhibit 381, subject to the necessary time which will be required for processing.
DR. KUBOSCHOK (Attorney for Defendants Schlegelberger and von Ammon):
May it please the Court, I have an objection on principle to the submission and offering in evidence of documents during the examination of a witness, and the immediate introduction of the document as evidence. The Defense is deprived of the opportunity within the well known period of twenty-four hours to get information about the document.
MR. KING: I think that Dr. Kuboschok has misinterpreted the twenty-four hour rule. Certainly, as I understand it, it does not apply to documents which must be used to correct impressions developed on cross examination. If that were true, it would be impossible to submit any document on redirect to correct an erroneous impression developed during cross.
DR. BRIEGER (Attorney for Defendant Cuhorst) May it please the Court, above all I would like to object to such documents as are submitted in the redirect, and I agree with the statement made by my colleague.
Dr. Kuboschok.
MR. KING: May it please the Court, I hope it was clear to the Court that the exhibit cannot physically be offered at this time as an exhibit for the reason that it is not processed. I only wanted the witness to identify it so that when it is formally offered it will be clear that is the document to which he referred; I am asking the Court to assign an exhibit number at this time; it was only to further identify the document.
JUDGE BRAND: I would suggest that you mark the exhibit 381, for identification, and offer it later.
MR. KING: Right; it will be done. The Prosecution has no further questions of the witness Lehmann, and if there are no questions we ask that he be excused.
THE PRESIDENT: Inasmuch as there has been a question raised as to this being new matter not included in the original direct examination, we will lay the way open to Defense Counsel to further cross examine on the subject matter of this letter only. Do you Defense Counsel want to examine concerning this? If not, the witness will be excused.
MR. LaFOLLETTE: In order that we may establish some practices, we have sent this document to Colonel Nesbit, Secretary General, with the request that he note the Exhibit No. 381, for the purpose of identification.
DR. SCHILF (Attorney for Defendants Mettgenberg and Klemm) As far as the document is concerned, we might possible like to undertake a cross examination about it, but as long as we do not have the text of it, I'd like to say that we are technically not in a position to do so.
Mr. King only read parts from this letter; he only read excerpts, and we heard them only in translation, that is in the re-translation. In order to undertake a cross examination which would be of some avail, there are two prerequisites which are necessary; first, that we could read the entire letter, and that we would obtain an authentic German original text. Therefore, I would like to reserve the right to cross examine the witness again after we have received a copy of this letter, that is, the right to recall this witness for cross examination about this letter only.
MR. LaFOLLETTE: If your Honors please, we object to this proposal to wait until the document is processed and then call him back; that will be a procedure which I think will be very ineffective and very bad trial practice. In this case the witness happens to be in jail, but we may well bring a witness in here which would require us to keep him in town a week or ten days possibly depending upon the condition of the document.
THE PRESIDENT: We would like to inquire of Dr. Schilf as to whether he could proceed with the examination of this witness if they had a brief time to examine the document now. How much time do you think you would like to have, Dr. Schilf?