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.
DR. KOESSL: May it please the Tribunal. I ask to be permitted to make a correction. I have never heard that Doebig was dismissed. On the contrary he became the presiding judge of the Senate of the Supreme German Court, or the highest German Court.
MR KING: I think we can amend my question to include that he dismissed from the presidency of the court in Nurnberg, and transferred to the presidency of the Supreme Court. May I rephrase that question. Will it be your opinion that his transfer, or his removal from the presidency of the Nurnberg Court was the result of differences with Rothaug? Your answer is - -?
A Yes.
THE PRESIDENT: That was the Nurnberg Court of Appeals?
MR KING: Yes.
THE WITNESS: Yes.
BY MR KING:
Q I have one more question. You testified yesterday that Rothaug reviewed for the SD case which arose in the Nurnberg Special Court. From your conference with him do you know of any other special courts; do you know of cases from any other special courts which Rothaug reviewed, and on which you subsequently reported?
A Yes, in my field about which I had to report, there was also the District Court, the District Court of Bamberg, the neighboring court of the District Court of Bamberg, the special court for that District Court of Appeal, and according to the general consensus of opinion in Party circles it still, from a National Socialistic point of view, had a jurisdiction that was much too lenient, too weak, and not severe enough so far as their verdicts were concerned. About that fact Rothaug told me secretly, and I have also forwarded the opinion of Rothaug about the decisions of that court within the framework of my reports to the RSHA.
Q Besides the cases from Bamberg, were there cases from other courts of which you know?
AAbout other courts, I believe, outside of Bavaria, we spoke once, if I remember correctly. It may nave been the Special Court at Sarrbruecken. I don't think I am mistaken. The cause for these conferences came neither from Rothaug nor from myself; that is to say, not because we knew about any decisions of these courts on our part, but these conversations were started because of an assignment received from the RSHA. At that time my office received a large number of reports from the RSHA about the decisions of these, I believe, three Special Courts. The informative material consisted of SD reports of a moral nature and technical nature, which were supplemented, I believe, by excerpts from decisions of these Special Courts, by mentioning the facts in question and the decisions pronounced. It was quite a considerable amount of material.
With these files there was an accompanying letter to my office, by which the RSHA requested that the President of the Special Court, Dr. Rothaug, should be asked for an expert opinion about that material, to Rothaug so that he, after studying it, should give his opinion about the decisions against which protests were voiced and that he report his opinion to the RSHA. That was also done subsequently.
Q In your reports which you submitted to your superior here in Nurnberg, and which reports were eventually, so far as you know, forwarded to the RSHA headquarters in Berlin and possibly even to the SS headquarters--were these reports secret? Did your name, as reporter, appear on them?
A No. First, to answer the first part of the question, I have to say that principally all matters in the SD were secret.
As far as the second part of your question is concerned, no reporter in my office--and that was all throughout the Reich--was permitted to sign his name personally when he forwarded the reports un less there was a special order to sign by order of the superior.
Besides, there were never any names mentioned in any material that was sent up to higher offices. It was hinted whether the person in question was a judge or a layman, whether it was a judge of a penal court or a civil court. It was explained in some way who the man was from whom the report came, what his position was. But beyond that, I have no doubt that the RSHA, purely from both the form and the content of the report, in all cases, could gather whether the material--especially so far as jurisdiction was concerned, or Administration of Justice was concerned--came from Rothaug.
As far as the results of purely official conversations were concerned, it was also mentioned that it included the experiences, the opinion, and the statement of the presiding judge of the Nurnberg Special Court.
Apart from that, Rothaug often insisted that his expressions, his own expressions, were included in the report be the SD. I believe it is known to you that for certain facts, certain actions by a criminal, for certain formulate of law, Rothaug had his own expressions. And since a personal contact was taken up between the official at the RSHA, the man in charge of law and administration in that office, and Rothaug, in the course of time, there is no doubt that the reports from Rothaug at all times were recognized as coming from him.
MR. KING: The Prosecution has no more questions on direct examination to ask of this witness.
THE PRESIDENT: I should like to ask the witness one question. It appears that Doebig was transferred from the presidency of the Court of Appeals at Nurnberg to some position in the Supreme Court. I should like to know more definitely, if the witness can tell us, just what his position was with the Supreme Court.
THE WITNESS: Doebig, so far as I know, became president of a Senate at the Reich Supreme Court. I believe that he was supposed to be put in charge of the Zivil Senat, the Senat for Civil Cases.
THE PRESIDENT: Do any of defense counsel desire to cross-examine this witness?
CROSS-EXAMINATION BY DR. KOESSL (Counsel for the defendant Rothaug)
Q Witness, your position was that of chief of a department?
A No, in an Abschnitt. May I point out that there was no such expression as Abteilung: there were special departments, Referate.
Q So it was Referat III-A?
A Referat III-A.
Q Referat III-A was part of the Home forces?
A Yes.
Q Your work with Rothaug was based on general directives, on the basis of which the SD groups had to get in contact with the Special Courts; is that correct?
A The real cause for the contact with Rothaug as presiding judge of the Special Court was, as I explained yesterday, the desire of the Inspector of the Security Police and the SD in Munich to be informed about the decisions of the Special Courts, or to remain currently informed about their decisions, because the Inspector of the Security Police and the SD in Munich was, at the same time, supposed to send reports to the Reich Defense Commissar who, at that time, was in Munich, but whose field was all of Bavaria. A measure of that kind was of a local nature, at first only for Bavaria, an internal instruction, let us say, from the RSHA, because a contact of that kind did not exist at that time.
Q But it was a contact which was taken up all over Bavaria?
A Yes.
Q One moment.
A I did not explain that yesterday in sufficient detail. That wish, or that desire, was to be expressed by a letter of the Inspector in Munich to the President of the District Court of Appeals. In this letter which was to be written, ab the same time the man commissioned for that particular district--the areas in question were only Munich, Nurnberg, and Bayreuth--was to be nominated.
That was usually the Rechts-Referent, the man in charge of reporting on legal matters. At that time my office received a carbon copy of that letter from the Inspector. That, at the same time, according to the instructions attached, was the cause for us to immediately take up the conferences with Doebig. When we had this conference, however, we found out that the original letter had not been sent to the President of the District Court of Appeals. What internal reasons may have existed for that, I cannot say, I do not know.
Q The Inspector of the Security Police and of the SD in Munich acted, therefore, obviously upon instructions of the Reich Defense Commissar of Bavaria?
A I could not say that with certainty; I could not even assume it, because I do not know to what extent the Inspector in Munich was in connection with the Reich Defense Commissar.
Q The Inspector in Munich, however, as you said, had held the position of an official, reporting information to the Reich Defense Commissar?
A. Yes, through the channels of the Security Police and SD.
And in that field--
A. One moment. Seen from outside, however, it did not happen in the manner that the inspector went to the Reich Defense Commissar personally, but there were intermediaries between them in the person of the higher SS and the police leaders. That probably was the man who informed the Reich Defense Commissar.
Q. Did the SD have the form, the character, the rights and privileges of an official office, an official authority?
A. May I state first that the SD grew from the Information Service of the Party. That later, according to the explanations that we were given from the moment of the seizuer of power on, that it became a more official character. At any rate, there exists an instruction from the Reich Ministry of the Interior, that is essentially the administrative offices, were instructed, it was pointed out to them that the SD will also from then on work for the State, from which you can see how much of an official character it had. Above and beyond that, during the war years we were repeatedly told, and it was stressed to us, that the SD Main Office, that was Office III in the RSHA, really constituted a Ministry.
Q. Do you still know what the purpose of the visit of the SD leaders with Doebig and Bems was and what considerations, what principal considerations, were discussed on that occasion?
A. As I have already explained, subject at first on the occasion of that official contact, taking up of contact, was that from a authoritative source the reports should be received about pending criminal cases, and of course also about legal problems in connection therewith.
The SD through all its reports from the outside, received information about the consequences on moral of decisions of courts. It is clear to us today that the layman's point of view frequently deviates quite essentially from the facts established in court. And in order to provide a correction a possibility of correction for our reports it was necessary that we establish the official connection to the court authorities.
Q. Therefore it was intended that this contact should correct mistakes in the reports received from other sources, which mistakes were cased on reports from laymen and frequently caused misunderstandings of the facts?
A. That is essentially true.
Q. Now, you discussed at first the conferences. you came to Rothaug first on Saturday mornings in order to get information?
A. Yes.
Q. Did you stick to that in the course of the following period, or were there larger intervals between these meetings?
A. If I should indicate a period first --
Q. I asked only, was that regularly on Saturdays?
A. In the beginning, yes, the first half year.
Q. And later?
A. Later, either if an inquiry had been sent to us from some other source or when, on the basis of reports which we had received from other sources we had questions to put before him, or when Rothaug on his part had to report anything on the basis of his activity --- and I emphasized yesterday that he was very productive for us -that in the field of political law, not only in the field of general law, but beyond that and also in the field of civil law, he brought to as experiences and inspirations.
Q. If I understand you correctly, Rothaug dealt with matters of principle of a general nature, not, for instance, the treatment of individual cases, the manner in which individual cases were handled.
A. You have to distinguish here between the--you have to start here from the assignment which the SE had as information source for the whole country. As I have emphasized, yesterday, the purpose was to eliminate wrong developments first, to point them out. In case cf these developments in the wrong direction it could only be matters of principle in the beginning. According to the instructions we had received, it did not suffice to point out a principal wrong, that is to say, a gap in the law, but it was necessary that on the basis of concrete examples of definite individual examples, that gap be proven, and if possible, at the same time in this case, of coarse, by the expert, recommendations had to be made for modifications. And on the basis of this activity individual cases were the subject of discussions and conferences. Frequently, as far as I remember, it occurred that at times the individual case itself was discussed as, for instance, the case of Katzenberger and another case which I still remember.
Q. So it was a matter of justifying opinions if individual cases were mentioned?
A. Yes.
Q. It was not a matter of interfering into an individual case on the part of superior offices, an interference into a pending, into an actual proceeding?
A. Well, of course it was possible that the individual case itself, though the leadership office, became known to to the Ministry and caused individual measures.
I can give you an example. In the directives concerning files there is a provision according to which wills are to be attached to the files of the court. furthermore, there is s me directive of some sort according to which last letter of soldiers who have been killed could be considered, under certain circumstances, as having the force of a last will. That was particularly customary in the airforce, in the Luftwaffe, that in c se a flier died, these letters were considered, and if there were any provisions in these letters concerning the heritage and there was no other pro f of any will existing, they were considered to represent the will. That happened, for Instance, in one case. There was a s Idler by the name of Schneiderbanger. The woman, we had lost her husband in the first World War, and I believe already one son in this war, lost her last s n. It was in air Combat over London, I believe. She presented to the C art the letter in which e me provisions were included about his luggage, I believe. The Court considered that letter to represent his will, and asked for the original from the woman--asked that the original be put in cue files. Since for sentimental reasons she objected to that, she was threatened with a fine or a prison term. That affair raised a lot of discussion. Various offices of the Party intervened and it came before us. I reported that case. In the opinion of the RSHA it was not an case, a rare case, but it was a development which w aid have to be taken into account either by law or by directive fr m the Ministry. It was strange that in this case the reaction of the Ministry of Justice was not an instruction of a general n tare, but the directive through channels that the woman in this particular case should be permitted to keep the letter.