me how the SD was organized at Gau level?
AAt Gau level principally every Gau had. an SD Department. That, according to the Gau level, was the SD Abschnitt, and the extent of this SD District was usually the same as that of the Gau.
Q In these SD organizations which were attached to each Gau, how were they organized? Were there departments in each SD organization within each Gau, and if so, what were these departments?
A In the SD Districts there were departments or Referendar, as we called them. Essentially there were four. III was the designation of the SD office in general. III-A, law and administration; III-B, Volkstum and Public Health; III-C, Cultural fields, including education, and III-D, economy.
Q When you were assigned to the Gau here in Nurnberg for the SD. to which one of these four departments were you assigned?
A I was assigned to the department for law and administration.
Q And what was your position in that department?
A I was in charge of it. That is to say, for quite some time there was only one man in it, really. There was only one person.
Q Can you tell me in general -- I will later ask you some specific questions, but now tell me in general what your duties were as head of the law and administration of the SD in the Franconia Gau.
A The SD as home information service, in cur case through the RSHA, had to inform about all developments in various fields of German life. I personally had to report about all developments in the field of law and administration, positive and negative developments which occurred in that field of law and administration, to investigate and to report abort them.
Q Being assigned to the law and administration section did you confer with the defendant Rothaug in connection with your official duties?
A Yes. On the basis of an instruction received from the inspector of the Security Police and SD at Munich, who was our adminis trative superior, from an instruction through him we had to take up in connection with the Special Courts, that is to say, to the prosecution of the Special Courts in order to inform the inspector, and in the last event, the RSHA, about the pending criminal cases, that is to say, the activity of the Special Courts.
In the course of this instruction, this action, it came to a conference of my chief with the President of the District Court of Appeals, and in the course of that conference Doebig, the President of Are District Court of Appeals, stated that he was not competent for any agreement that had to be passed here because the Prosecution, the office of the Prosecution, was above the Prosecutor. For that reason on the same day, practically at the same hour, during the same hour, a conference was brought about with the General Prosecutor, Dr. Bens. On that occasion the presiding judge of the Special Court, Rothaug, was present. Bens justified that by saying that the first hand information about pending cases before the Special Court, pending criminal cases before the Special Court, could best be obtained from the presiding judge himself, because it was he who was in charge of scheduling the cases and therefore could give the best information, and for that reason Rothaug was drawn into that conference. The oral agreement came about to the effect that from time to time if my superior office was interested, I should get the appropriate information from Mr. Rothaug.
Q In connection with this series of conferences when did you first see Rothaug?
A Well, the conference in question, you mean?
Q No. As I understood the answer to the previous question, after you had seen Doebig and Bens, you were finally told that you would confer in connection with your official duties with Rothaug. When then did you have your first conference with Rothaug concerning your official duties?
A The first short conference took place immediately after that conference with Bens and Doebig the same day in Rothaug's office. On that occasion, Rothaug stated that he was quite ready to work together with the SD, as far as information was concerned.
Q And thereafter, did you see him at regular intervals, and if so, how often did you see him?
AAt that time, an agreement was reached between Rothaug and myself that principally I should come into his office every Saturday and there he would inform me about matters which in his opinion were interesting for me -criminal cases-- and give me all the information. On that occasion, we would be able to discuss any other legal questions of interest that actually took place; and particularly during the first half year I met Rothaug pretty regularly on Saturdays.
Q Now after these Saturday conferences with Rothaug, did you make a report on what was said to your superiors?
A I sent reports to the RSHA about everything in the way of information which I received from Rothaug.
Q And these reports which you sent to the RSHA. went first to your superior located in Nurnberg, and then so far as you know, up to Berlin and possibly even to the head of the SS? Is that right?
A It really occurred that way, that whatever Rothaug considered important he expressed himself.
I took stenographic notes and I had them transcribed at my office, and on the basis of these informations, I wrote my report to Berlin - of course, without any opinion on my part and without making essential changes which would not have been within my duties.
Q In these conferences with Rothaug, which occurred family regularly every Saturday morning, can you tell the court in general what was discussed? Later on I want to ask you several specific questions, but now, if you will, please tell us in general what Rothaug discussed on these occasions with you?
A Mostly the information which he gave me was in a form of instructions about developments of criminality which he explained with examples of individual cases. He informed me, for instance, that mail robberies or blackout crimes were increasing and that they constituted most of the criminal cases at that time. Then he explained to me in what manner criminal procedure had to be developed in order to present effective measures against that undesirable development of criminality and to manifest that in the way of jurisdiction. On that occasion, of course, individual cases were also discussed. In addition to that, he also mentioned matters of legal, political development; also in the field of substantive law, matters which came to his attention in the course of these proceedings -- sometimes in the form of short dictation or of handwritten slips which he prepared. It was not only that the current cases were explained to show the development in criminality but also anything that occurred in the field of law and had to be corrected by higher offices, be it that it needed a negative or positive decision, that he wanted to have written down and reported to higher offices.
Rothaug knew, I take it, that these notes and reports which he handed to you were passed on by you in line with your official duty --passed on to higher authorities in the RSHA and in the SS?
A That he knew, for certain, and in my opinion that was what he wanted. It could be seen from remarks to the effect that such matters had to be reported to higher offices so that from these higher offices appropriate counter-measures could be taken.
Q Did Rothaug discuss in these conferences with you the sentences he expected to give in cases that were to be heard in his court in the near future?
A Yes, the proceedings in the next period of time, sooner or later were to be tried-- as far as they were important, were discussed partly on the basis of the files, partly on the basis of his knowledge of the fileshe gave me a short explanation of the facts and also his opinion about the legal procedure--the legal dealing with the cases, as far as the application of the facts were concerned in consideration of the sentence to be expected.
Q that in general was Rothaug's attitude, so far as he reported it to you, on the interpretation of criminal law?
A Rothaug in principle was of the opinion that particular ly in times of war, on account of a certain laxity of security measures-- be it due to shortage of personnel or other things--criminality would increase; that not only an increase of serious criminal cases would occur, but also of so-called political criminality; and that the activity of the Special Courts should be conducted in such a manner that an increase of serious criminality of that kind should be forestalled; that any attempt against the State in a political, criminal or other manner would have to be wiped out by severe penalties.
Q Can you tell us what Rothaug's apparent attitude was towards foreigners, especially Poles, so far as the application of criminal law to them was concerned?
A In my opinion, Rothaug's position was that particular ly toward foreigners-- Poles and others-- any amount of clemency should not be applied; that especially these elements had to be met with severe measures in order to assure that attempts which would be made to counteract the successes of the Armed Forces should be choked off at the outset. It may be that he would have used more clemency towards German criminals than to foreigners.
Q Can you tell us whether you are familiar with the decrees against Poles and Jews that was promulgated in 1941?
A Yes, that is a concept for me.
Q You're in general familiar with the provisions of this decree, are you not?
A Well, in detail--of course, today I couldn't say-but in general, yes.
Q What was Rothaug's attitude toward Poles and Jews prior to the time that this decree was promulgated so far as you know from the conversations that you had with him and from the reports that you passed on from him?
A I believe that it was clear to Rothaug that here, if I may say so, there was a gap in the law; that that gap should be bridged; but that a judge with the right political attitude should be in a position, in spite of this gap, to sentence accordingly. He found the juridical way to pronounce the sentences which he considered appropriate.
In other words, would you say that Rothaug achieved, without a decree, and prior to the time that it was promulgated, the same legal effect that later could be achieved under it?
A That is correct, beyond doubt. As special court judge in Nurnberg, he achieved the same success. I should only think that perhaps measured against conditions all throughout the Reich, he thought that a formulation of these principles was needed.
Q Is it your feeling that Rothaug's outspoken comments on the need for such a decree, as was later formulated, was influential in the final promulgation of that decree?
A Nell, as far as the various things are concerned that finally led to the decree, I am not well informed about that; but that Rothaug's information may have contributed, that I believe.
Q In any event, prior to the time that that decreed was formulated in 1941, you had set up in line with your official duty many of Rothaug's comments on what the law, or what the situation lacked at that time?
A That was certainly the case.
Q In discussing the case with Rothaug in this Saturday morning conference do you recall any particular case to which Rothaug referred?
A You mean in a particular category of a criminal act?
Q No, I did not refer to that. Perhaps my question was not clear. I meant in spectacular cases which were to be tried by Rothaug, or other judges in his court, In other words, did you discuss, or did he discuss with you the more spectacular cases at any time?
A Yes, he did. I remember, for instance, the case of the Dachau criminal, I think it was Poelmann.
Q One moment. I did not get that name.
A Poelmann. P-(umlaut)-O-L--M-A-N--N, two Nos. That man Poelmann, if I remember correctly, had taken a large quantity of lard front a barn in Furth, I believe at night. There may have been several hundred liters and also other things. If I remember correctly, Poelmann was sentenced to death by Rothaug. The verdict or sentence in my opinion was not executed, but through a pardon was commuted into a long prison term, I think eight years in the penitentiary. Rothaug talked to me at that time about that pardon, which technically reduced the death sentence, which in Rothaug's opinion was a correct sentence, to a prison term.
Q Do you remember any other cases that you discussed with Rothaug?
A Yes, one speaking of a typical case, the case of Katzenberger. That case Rothaug and I discussed also once, but I believe it was where a sentence had been passed at that time, and I expressed my opinion that on the basis of information I had received, and also on the basis of opinion on what was known of the criminal, that the facts of their sexual relationship was not an accomplished fact, because the law inso far as I knew required the act of sexual relation between a German and a party of non-aryan descent.
DR. KOESSL: May it please the Tribunal, I object against the examination, I object to the examination in this manner, because the opinion which is stated by the witness, the legal opinion which is stated by the witness shows that he is not an expert, and furthermore, he has not been called as an expert witness.
THE PRESIDENT: We see nothing in the answer in the nature of which shows anything other than he was just stating a conversation, the way we get it.
THE WITNESS: I do not in any way wish to give an expert opinionhere. I only wanted to explain why I came to speak about the case of Katzenberger, because I was asked whether he spoke of any other case, and particularly this case is one which was mentioned as the case of Katzenberger. Therefore, may I continue in my opinion. At the time the facts were not complete, because it was not proved so far as I know that the German woman was doing nothing more according to the proof other than that she was sitting on his lap, and, Rothaug, I remember that quite clearly here, said that one had to take the human facts into consideration, and could hardly expect that a man of that kind, he meant the man Katzenberger, would act otherwise, that nothing had happened once the girl had been sitting on his lap, and, that, therefore that consequently he considered the proof as given.
BY MR. KING:
Q Now may I for a brief moment digress to another subject. In your position with the SD you undoubtedly had an opportunity to observe the political influence that various people with whom you came in contact wielded?
A Yes.
Q What do you know about Rothaug's influence with the Party men who ran the Gau Franconia. What are your impressions?
A Rothaug had some close connections to the Gauinspector Haberkern. Haberkern as our inspector could gain an insight in all matters going on in the Gau, and in my opinion for a discussion of such matters, particularly in the legal field, he took the advice of Rothaug, so that, since the Gauleiter depended on Haberkern, Rothaug suddenly could have his opinion go to the Gauleiter on legal matters.
Q What men besides Haberkern were influential in directing the affairs of the Gau Franconia?
A Well, first, Streicher was Gauleiter. After he left it was probably several months among others that gathered in the Gau Staff with Holz. Then Holz went to the Army, he had been the Deputy Gauleiter, and at that time the Kreisleiter Zimmerman was in charge of the official business of the Gauleiter, and so far as I know the relations between Zimmerman and Haberkern and Rothaug were very good. They were close ones.
Q May I at this point ask you to clarify one matter. You say that Streicher, Haberkern, Holz and Zimmerman, as leaders of the Gau, were of necessity members of the Party Leadership Corps?
A Yes.
Q Now in your opinion from what you were able to observe, did Haberkern's reliance on Rothaug, and Rothaug's influence over him result in Rothaug having a very great influence on the Party Leadership Corps here in the Franconia Gau?
A Insofar as Haberkern could indulge in the influence as to the Leadership Corps, Rothaug through Haberkern had the same influence, and, I should like to assume that in the question of law, Rothaug certainly is the man who was the higher authority so far as the Gau was concerned.
Q Do you know whether Rothaug had ever taken an oath of secrecy as a collaborator with the SD?
A Yes, he did.
Q Do you know when that happened?
A That must have been in 1940, because in May 1940, approximately in the Spring of 1940, that is before the French campaign, that a conference which I had mentioned took place of the prosecutors, and I believe a short time afterwards Rothaug was drafted for the SD and was put on oath by the SD.
Q Now I'll ask you this question. Just whet is the higher more responsible position in the SD, the position of informer, or a position of a collaborator?
A Certainly, I may correct that, there was no official informers. You mean the confidential agent, the Vertrauensmann. Then there was also the term of "Honorary" collaborator. The confidential agent was the man who in a certain field of law, penal law, the administration of justice in the central field, occasionally was used for information, of course, secret information that had to be kept a secret. On account of shortness of men, which existed during the war, it had become necessary to bring in also the honorary agents who had certain functions, and who in a special field, in a definite special field, also had the functioning of rendering information; the informative material which had come from other places was digested by them and put together in reports. All such people who in the special field, that is, assuming the field of penal law, was a source of information. This honorary collaborator, if that can be compared, I would like to put on a higher level than the confidential agent, or vertrauensmann.
Q. I think I did use the wrong term in referring to the confidential agent as "informer", but in any event, you understood my question, and I think I understand your answer.
Did you ever attend a trial which was presided over by Rotlaug?
A. Yes.
Q. From your observation, can you tell us briefly how Rothaug conducted his trials?
A. Once it was a case of Hollamuendel, the man with the automobile traps. Then the case of Feldstengel. There were several others. Those were cases of burglary during the blackouts, blackout crimes.
May I pick out here the principal matters such as they presented themselves to me after my experiences as an SD man. I think I am not mistaken in assuming that Rothaug considered the trial before the Special Court as a means of direction and education and that accordingly he conducted the main trial on a broad basis and facts which constituted transgressions against the program of the Party, the directives of the political leadership, suck facts were developed to suck an extent that the illegal clements which were contained in the opposition against the political leadership were brought to the foreground. I would like to say that ho rather disregarded other circumstances concerning the defendant, his office, his position. He wanted to remove these circumstances, to leave then aside, in order to develop clearly the criminality of the act of the defendant, and just because he considered the main trial as a means for the direction and education of the people, he used every means to make it possible for as many people as possible to attend and underlined matters which offered poss ibilities for tho political education, in order to exert influence on tho listeners in that manner.
Q. In your conferences with Rothaug, did he express the view that trials were to be used as a means of political education?
A. Yes, of course.
Q. From your observation of Rothaug's conduct of trials where he was the presiding judge, your answer is that in practice they actually were conducted that way, as a means of political education; that was tho purport of the answer to tie next to the last question, I believe.
A. Yes, that was my personal impression, which I gathered from the comparatively few trials which I attended myself and also from information on the basis of the material about tho trials. From these reports, it could be soon that Rothaug had the intention to use the many trials as a means for political education.
Q. Do you know when Rothaug was transferred to Berlin and what his official title was there after the transfer?
A. After Thierack had been appointed Minister of Justice and after the visit by Thierack in Nurnberg, Rothaug was transferred to Berlin. I could not say the exact date, but I think it was the end or the middle of 1943.
Q. From your observations, did his influence with the Party loaders in the direction of the Franconian Gau in any way diminish after he received this position in Berlin?
A. I don't think so. I an convinced that afterwards, as before, Rothaug's initiative was still felt in the Gau Franconia. He came to Nurnberg repeatedly, and there in the Blaue Traube he not the loading non that I have already mentioned, and there doubtlessly discussions and conferences were hold, and the opinion of Rothaug sought by tho others.
Q. In addition to Rothaug's officially designated duties in Berlin, do you know whether or not he had any connection with tho RSHA there?
A. Well, what the nature of his activities there was I could not say. I know only that after the transfer of Rothaug to Berlin, tho competent SD department in Berlin requested from us material about Rothaug as a confidential collaborator of the SD, but that tho official at the RSHA directed that Rothaug should be attached directly to the RSNA, taking into consideration his importance and qualifications. From that I would like to conclude that the RSHA recognized the importance of Rothaug so strongly that they wanted to have him attached immediately, directly, to their office.
Q. Would you go so far as to say that the motivating reason for his transfer to Berlin nay have been the wish of the RSHA to have him attached to the RSHA in Berlin?
DR. KEOSSL: May it please the Tribunal, I object to this question, since the witness can not tell anything about that. He has already said once that these matters were not within his range of observation.
MR. KING: I did not understand the witness to say that or anything similar to that. As a matter of fact, this witness is in a very good position to observe. He was attached to the SD in Nurnberg, which is a part of the RSNA, and has already said that they received requests for reports on Rothaug after he transferred to Berlin. I therefore think that he is in a very excellent position to answer the question.
THE PRESIDENT: You may answer the question.
BY MR. KING:
Q. Would you proceed please?
A. I have emphasized before, and I repeat again, that all these cases where a collaborator of an Abschnitt was sent directly to the RSHA and attached to it were very infrequent. Daring my entire activity at the SD in Nurnberg, I have not heard of any other case. Therefore, if Rothaug, in the case of a conflict of interest, a conflict of the intentions of the SD office, Berlin, and the RSHA -if in this case the RSHA decided that Rothaug will come to the RSHA, that is to say, he will be attached as a confidential agent, the RSHA certainly then considered Rothaug of great importance.
Q. Did you know of Rothaug's feeling toward Doebig, who at the time you became a member of the SD was Oberlandesgerichts President in Nurnberg?
A. Yes.
Q. Do you recall that Doebig tried unsuccessfully to have Rothaug transferred to the presidency of a Special Court in the occupied Eastern territories?
A. Yes; I know that Doebig once had the intention to have Rothaug transferred to the presidency of a court to the East.
Q. Do you have any reason to suspect what the reasons for Doebig's wanting to transfer Rothaug may have been?
A. That Rothaug did not at all agree with Doebig politically became cl ear to me very soon from various incidental statements, and that Rothaug in my opinion thought that Doebig would hamper jurisdiction in the sense of Rothaug, that can be assumed with certainty. The whole matter became much more obvious when this transfer was about to be announced and Rothaug played quite openly by presenting the material against Doebig, implicating Doebig, which he had collected and also presented to the Gau Leadership Office, when he presented that material to us with the request that we should report it to higher offices, that thereby also his transfer to the East could be stopped
THE PRESIDENT: We announced that we would make a ruling as to whether we would have a vacation tomorrow. We have been since advised that the other Tribunals will be holding court tomorrow, and we therefore think that we should act in harmony with them, so we shall adjourn at this time until tomorrow morning at 9:50.
(Whereupon, at 1630 hours, the Tribunal adjourned until 0930 hours, 1 May 1947.)
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 1 May, 1947, 0930-1630, Justice Carrington T. Marshall, presiding.
THE MARSHAL: Person in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal No.3 Military Tribunal No. 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: Marshal, you will please ascertain if all of the defendants are present in the Court.
THE MARSHAL: May it please Your Honors, all the defendants are present in the Court with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert has been excused temporarily at his own request, and proper notation has been made.
BY MR KING:
Q Witness, at the conclusion of yesterdays session we were discussing the role which Rothaug played in the ultimate dismissal of Doebig, which was in 1940 and '41 and later Oberlandesgerichspresident in Nurnberg, and, I had asked you if you knew of the affair following Doebigs attempt to transfer Rothaug to the presidency of the special court in the occupied eastern territories . I want to continue with that line of questioning just a little more this morning. Can you tell us what reasons prompted Doebig to attempt to transfer Rothaug in the first place?
A Well, always when working with Rothaug I say I had the impression that between Doebig and Rothaug there was a bad feeling, which one could even say was a hostile feeling, which at first I thought had its reasons in political facts, whether there was any personal reasons for this, let's say hostility, I would not know.
At any rate it was obvious to me, and I believe I could assume that it was known throughout the courthouse, that tension between Doebig and Rothaug existed. Technically speaking, I am of the opinion that Rothaug did not agree with the attitude of Doebig towards the National Socialistic administration of Justice. I believe I can assume that Rothaug, as far as Doebig's attitude towards the severe administration of justice and jurisdiction is concerned, Rothaug considered Doebig's attitude too lenient, and beyond that, so far as purely admininstrative measures were concerned, personal, and so on. That he was also of the opinion that Doebig opposed the National Socialistic intentions of Rothaug, which was clearly stated and clearly defined. I also believe that Doebig had reasons to believe that Rothaug was working against him with political means. That background certainly contributed to the final decision of Doebig to end these discrepancies by having Rothaug transferred to the East.
Q You said yesterday that at the time this matter came up, you had some conversations with Rothaug about the attempted and intended transfer of Rothaug; did Rothaug ever tell you what would happen to Doebig if Doebig attempted to transfer him?
A I did not quite understand the question. Do you want me --
Q I shall restate my question. You said yesterday that after the attempted transfer of Rothaug was under way, that one of your Saturday morning conferences you discussed with Rothaug the pending transfer.
Now in this conference, or these conferences with Rothaug, did he ever indicate to you what he hoped to do to Doebig as a result of Doebig attempting to transfer him to the East?
A Rothaug at that time when he received, I believe it was in the morning, the information from Doebig, that is, the information about the planned transfer to the East, he was informed at once of these facts, and asked that I inform the RSHA of those intentions. He stated in general terms the connections, the criminological connections, the intent, and the background which I have already explained before; he also insisted that he would still send a detailed report to my superiors explaining these connections, and the incompatibility of the person of Doebig. That was also done subsequently. I received a report from Rothaug, a complete report where a political disqualifications of Doebig was included. I believe I should also say, if I remember it correctly, that that report in the same manner was also forwarded to the political leadership office of Gau Franconia, presumably through Haberkern, and there submitted to the Chancellery from there. So far as I was concerned with the SD Reporter, it was obvious to me that that report, once it came to the Supreme Leadership, by it the Justice Administration or party - - well, no, not immediate but in due course, it would cause - - it would have put or caused counter intelligence against Doebig.
Q We know from the record that Doebig was actually dismissed in June 1943. What was your Opinion of this dismissal, that is, probably, it was the direct result of Doebig's differences of opinion with Rothaug?
A That is my opinion.