Therefore nothing may be disregarded which may serve to establish the truth and to arrive at a just verdict. For this it is essential that the accused is heard, that -- as long as he does not use this possibility granted him for "Fonsterreden" (harangues meant for the public) -- he can defend himself in connection with the accusation, that he may offer evidence of any kind, that he can express himself with regard to the findings of the evidence heard and that he may have the last word. In cases where difficulties arise from difference of language it is of course essential that the possibility of understanding is secured, if necessary with the help of an interpreter. The judge and all the officials of the administration of justice always and without exception will speak German with the exception of the interpreter. Likewise all evidence, as far as it is not declared, with certainty as being unsuitable right away, must be fully investigated.
"The giving of the opportunity to the Public Prosecutor and the Judge to use their own discretion in the arrangement of proceedings was possible only because it may be assumed that no German Public Prosecutor and no German Judge in any proceeding conducted by him will ignore these principles."
THE PRESIDENT: Dr. Kubuschok, the hour for cur afternoon adjournment has arrived.
MR. LA FOLLETTE: May I address the Tribunal for gust a minute?
THE PRESIDENT: Yes, and before you do so, a hasty conference with my associates has led me to say that we desire to congratulate Dr. Kubuschok on the efficiency with which he has presented his documents, and we hope that his example will receive the approval of his co-workers by following the same procedure.
MR. LA FOLLETTE: If Your Honor please, it is probably a little late for me to take advantage of Dr. Kubuschok, but I also want to say that I let the proceedings go ahead today with reference to book V, although that one had not reached me. Dr. Kubuschok had made an honest effort to get me the books, and I don't complain. Likewise with reference to the witness. However, as we go along, in the interest of progress, I hope, with the assistance of the defense center, that we will begin to work out a completely satisfactory arrangement. We had four document books, but we did. not have tho fifth, and I have had to rely upon Dr. Kubuschok's personal statement to me as to the witnesses who would come, which I considered to be sufficient, and not a formal notice.
I want to make progress and will not object wherever it is possible, but perhaps if we can get a little more orderly notice to me-and that notice should come to room 242, where tho clerk of this Justice Team is; and when it is delivered there, we will consider it as binding on us.
DR. KUBUSCHOK: The fifth document book has already been translated and finished, and I assume that in the meantime it may have been submitted also to the gentlemen of the prosecution.
MR. LA FOLLETTE: Yes, we received one late.
THE PRESIDENT: I have here three copies of the questions which tho Court desired to have put to the medical experts. I think one will do for the prosecution, and if the defense desire the other two copies they may have them.
There being nothing further, we will adjourn until tomorrow morning at 9:30.
( At 1635 hours, 1 July 1947, a recess was taken until 2 July 1947 at 0930 hours.)
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 2 July 1947, 0930-1630, The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session, God save the United States of America and this honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, you will ascertain if the defendants are all present.
THE MARSHAL: Lay it please Your Honors, all the defendants are present in the courtroom with the exception of the defendants Engert and Klemm, who are absent.
THE PRESIDENT: The defendant Engert has been excused on account of illness; the defendant Klemm has been excused for this day upon request of his counsel. The proper notation will be made.
Dr. KUBUSCHOK: With the permission of the Tribunal, I call the witness Otto Meissner to the witness box.
(Otto D. MEISSNER, a witness, took the stand and testified as follows:)
JUDGE HARDING: Hold up your right hand and repeat after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
You may be seated.
DIRECT EXAMINATION
BY Dr. KUBUSCHOK:
Q.- Witness, please state your full name, your last name and first name.
A.- Otto Daniel Lebrecht Eduard Meissner.
Q.- Please describe what state office you held until 1945.
A.- From 1920 until 1945 I held the office of the Under Secretary and Chief of the Presidential Chancellery. In 1937 or 1938 I received the title of Minister of State, simultaneously with the rank and the income of a Minister of the Reich.
Q.- Witness, can you tell me what attitude Hitler had toward the Administration of Justice?
A.- Hitler's attitude to the Administration of Justice was an unfriendly one and a negative one from the very beginning. Hitler, in accordance with his entire character, held the moral, religious, and. philosophical imponderables of the life of the state in very low esseem. In the same way he also had a very low opinion of las, as one of the bases of the state. He was less a representative of the idea of the constitutional state than a representative of the idea of power or of the police state. This opinion of his was expressed not only in public speeches, but also in private conversations.
His attitude in regard to those who administered the law, the jurists, was the same. He always made derogatory remarks about them which inferred that they were removed from practical life. He said that that was not their personal fault, but of their education and the fault of their profession. He said they were deprived of every initiative, due to their profession and the fact of being tied to the wording of the laws. How often made comparisons, for example, as to how a business man has to adjust himself to the daily state of business and has to change his entire attitude and his decisions; a farmer who tills his fields has to change his arrangements according to the weather, and so forth. All this initiative and this adjustment to practical life does not exist in the case of a jurist. He was too closely tied to the wording of the laws, which often had not anticipated all possibilities; and thus it happened that frequently the sentences were neither in accordance with practical life nor with the requirements of the state.
He often justified a strong use of lay judges with the idea of the sound legal sentiment of the people, with vague thoughts of old natural law. He said that later on the entire constitution of the courts and the legislation of the Administration of Justice had to be basically changed.
This attitude of Hitler's about the Administration of Justice was expressed most clearly in public in a speech which he made an 26 April, 1942, in the Reichstag. In this speech, starting from one or several individual cases, he seriously, and in an insulting manner, attached the judges and the Administration of Justice. This speech was not a spontaneous expression of his own temperament. It was a prepared speech, which was read, and it was delivered in a very temperamental manner; it excited a groat deal of concern and evoked a great deal of publicity. I myself was present in the Reichstag when this speech was delivered. It contained the sentence that he had been given the right by the German people, as highest Gerichtsherr -- that is, the highest legal authority of the German people -- to hold office and therefore ho had decided to dismiss judges who did not meet his requirements. He used an expression which meant not only to pension them, but to chase them away.
Afterwards there was a great deal of excitement about this speech, not only in the cricles of jurists, but in circles of civil servants.
The then Under -Secretary Schlegelberger, who was then Acting Reich Minister of Justice, soon told me about his excitement and his disapproval of the speech concerning offense against the Administration of Justice and those who administered it. In so doing, as I dearly remember, he also expressed the intention that he wanted to resign in answer to this attack.
Q. Witness, what was Schlegelberger's attitude in his office as acting Minister of Justice?
A. Schlegelberger's attitude as an acting minister from the very beginning suffered because he had only boon put in charge of taking care of the business of the Ministry of Justice. That is, it was for an indefinite period, and every day he could be relieved of his position by a now minister. Therefore his position, even though in the interior duo to his knowledge of the material and his personality he was given a great deal of respect by the jurists, to the outside ho was rather weak. Especially toward the Party, he had no real position as Guertner, for instance, had had it. Also toward the Fuehrer by far he did not have the same position which Guertner had had. Guertner from the very beginning, that is, from 30 January 1933, and had already before, had been in the cabinet. Thus for Hitler he was one of the founding members of this coalition government. Already before when ho had been Bavarian Minister of Justice in Bavaria he had established contact with Hitler. - For Hitler ho was only a solution out of embarrassment. As far as I know, only once or only twice could he appear before Hitler. Several times he asked me to be able to see Hitler -on important questions. Hitler never allowed him to come to him. Hitler was most of the time in his headquarters, whore ho was very busy. Therefore he referred such requests to see him to the chief of the Reich Chancellery, Lammers.
Q. Did Schlegelberger within the administration of justice also have to count on opponents?
A. HE probably had the strongest opponent in his own house, and that is Undersecretary Freisler, who was put in by the Party. He was a fanatical National Socialist, that is Freisler, and had been given the duty by the Party and also carried the concept of this duty within himself to subordinate the administration of justice to the National Socialist political leadership, to put it more into the chains of National Socialism.
He also experienced constant difficulties on the part of the Gauleiter. I know, because part of these matters went via me, that in many cases Party members complained about sentences, that is, not only sentences in penal cases but also in civilian case, divorce trials, via the Party Chancellery or the so-called private chancellery of Hitler's and connected this with charges against the administration of justice or the particular court. These complaints then came to Schlegelberger. It was now left up to him to say something about it and to justify the court that had been attacked or the sentence that was being complained about. He always had trouble, and frequently complained to me how his life was made difficult by the Party. Ho frequently talked about it, that he would like to leave his position but the only thought that made him stay in office was that then the office would get into the claws of Freisler or another wild man, a one-sided, party man. Therefore he thought ho would remain, and I enforced him in this idea.
Q. What was Bormann's attitude toward the Ministry of Justice? What were his opportunities to influence it?
A. Bormann had just as negative an attitude, and in the form in which he expressed this, it was still more brutal. Bormann was an unscrupulous man of force. He himself, in regard to the complaints against the administration of justice and the Ministry of Justice, listened to them and followed them up. It was probably an open secret that in the elimination of Schlegelberger and replacing him by a 100% strict National Socialist, he was striving for this.
At that time in conversations the following persons were named, either Frank who at that time was Governor in Poland, or Thierack, who at that time was president of the People's Court. Schlegelberger's term as acting Minister in the Ministry of Justice lasted longer than all of us had expected. I don't know why. However, I do remember that during the winter 1941-1942 or in the spring of 1942 the President of the Senate, Engert, once paid a call on me and told me that the fooling against Schlegelberger was very strong in the Party. He was being charged with being too much of a jurist, and too much a man who was in favor of the law, and too little a supporter of the National Socialist state, that he was rather distant, probably, from the idea of National Socialism, and it was high time that ho should be replaced by a National Socialist who would then load the administration of justice in accordance with the ideas of National Socialism. Thierack would be such a man, and ho suggested that I in my capacity as chief of the Presidential Chancellery should make such a proposal to Hitler. I answered him that formally I was not competent for this matter. Formerly, I had, to be sure, dealt with personnel matters of the Ministers, and the question of changes in the appointments within the Ministeries, but since the death of Reich President von Hindenburg, this task and this competence had boon evolved upon the chief of the Reich Chancellery Lammers. Therefore I did not even have the right to take up such a suggestion. Furthermore I could also not agree with him that Schlegelberger's position as ho says was untenable because in the administration of justice and in wide circles of the people Schlegelberger had a groat deal of respect.
He was considered a man of right and justice. He had a great deal of technical knowledge of the law and many years of experience. Engert thereupon told me, well, then, he would like to talk to Lammers. Perhaps he also said, but I don't remember that for sure, that he would talk to Bormann also. In any case later on there was some talk about it that Thierack had entered in close contact with Bormann and had visited him several times.
Q. Witness, what sentences during the tern of office as acting minister of Schlegelberger were submitted to Hitler for clemency?
A. At the time of Schlegelberger's--well, let me start this way: Before the was, to Hitler as Reich Chancellor, all death sentences were submitted for confirmation or pardon, further more, other penal natters of political or general, special importance. From tho beginning of tho war, through a decree by Hitler, it was ordered that in consideration of the fact that ho was very busy with conducting the war, tho so-called negative right of confirmation was to be transferred to the Minister of Justice, that is to say tho Minister of Justice would have the right, without waiting for confirmation from Hitler, or waiting for a decision for clemency, to have tho sentence executed; that in cases where he considered that a pardon was proper, he was also supposed to be competent for it, but in order that Hitler would have an insight into it, every month he would be informed by a list of all the pardons which the Minister expected to issue. Later on the right of pardon was transferred even further by having tho right of pardon transferred from Hitler altogether to the Governor General for Poland, for that territory, for the Reich Protector for Bohemia and Moravia, for cases in that territory; and, later on the newly incorporated eastern territories, Poznan, etc., were added. In practice this is how it was handled. Schlegelberger every month-in urgent and important cases also in between--in cases where he considered a pardon as proper, submitted the cases wia me to Hitler, and this was done so that tho more important cases were incorporated in an individual clemency report for each individual case in detail, with his suggestion, by Schlegelberger that is; and the less important cases, purely criminal cases, Schlegelberger submitted in collective reports. A t the time of Schlegelberger's tenure in that position there wore perhaps ton such individual clemency reports per month-I have to estimate that; I don't know exactly; and later on it in creased to twenty or thirty, or even more cases which were reported in a list, and.
the introduction said: I intend in the following cases to have clemency proceedings started as reported in Case IV or V or whatever it was.
Q. Witness, did you have the impression that under Guertner and Schlegelberger the submission of the clemency questions for purposes of pardon were carried out to the utmost limits of what could be achieved with Hitler?
A . A difference between the time of Guertner and the time of Schlegelberger and the practice of the clemency question could not be noticed. It is my firm conviction that both of them wont to the outside limits of what could be accomplished; and especially Schlegelberger always exhausted the possibilities to the utmost to fight against sentences which had been too severe by way of the clemency plea. I remember numerous conversations, partly by telephone and partly oral; he visited me quite frequently at the office -- conversations during which he discussed the possibility how one could get a pardon from Hitler in this case; how one could justify this best; and in the most hopeful manner; and frequently we consulted together how one could get over unpleasant parts of the sentence, or over the votes of the Special Public Prosecutor or under Secretary Freisler, how one could fix up the natters best. During Schlegelberger's term in office, in most cases by far, his suggestions were successful. In practice it was as follows: The penal cases which were submitted as individual reports, I could report to Hitler in more detail. Here in each individual case he then decided. I always had two documents with me. One which said in the name of the Reich, I change the death sentence which was pronounced by the court into a prison term, and the years were usually left blank; or, into a penitentiary sentence, of let us say ten years. And the other form which I had with me read as follows: I have decided in the penal case of that and that person, not to make use of my right of pardon, but to let justice take its course.
Both of these forms were--I mean to say which ever form he was going to use then signed by Hitler. The cases which were submitted in the collective report he approved generally. They were not reported by me in detail. Finally, I only told him generally these are cases of that and that nature; put the list before him so he could look at it. He leafed through it a little bit and then said: I agree; I have no misgivings. Finally, this list which later--especially after Schlegelberger's time--contained frequently fifty cases, he never looked at it any more and approved of it without any further ado. That was the practice that was followed in clemency questions.
Q. Witness, if I understood you correctly, you said that Schlegelberger went to the utmost limit of what he could achieve with Hitler.
A. Yes.
Q. Did I understand you correctly that the picture of what you and Schlegelberger considered could be accomplished was the result of the practice of Hitler's decisions. Did Schlegelbergermake efforts to go beyond the limits--did he also make attempts to submit cases to Hitler where in accordance with Hitler's instructions he could not expect a pardon?
A. I did not have the impression that Schlegelberger paid attention to former decisions, that is to say the practice that Hitler had followed. I did not do so either. Schlegelberger and I, in the treatment of these clemency pleas and cases of confirmation, acted more in accordance with the reasons of humaneness; also, in opposition against these too severe sentences of certain Special Courts. And in accordance with this, we tried it even if in accordance with earlier decisions we had to assume that there is not much hope in this case. Hitler was humane, especially when women were concerned; also in crimes which had been committed under the impulse of an affect, or because of dependence; in political matters he was especially negative and sharp when it was the work of communist' s destruction, communist conspiracy, or sabotage in the armanent industries; attempts to form subversive elements in order to undermine the fighting strength.
Here he always had a negative attitude. Nevertheless, Schlegelberger in those cases too made suggestions for clemency, especially if older men were concerned or women. I remember a large group of about ten condemned persons from an industry in Mannheim. Among then were also an older man and an elderly woman, and Schlegelberger in this case too, in spite of the fact that he knew Hitler's negative opinion, took steps to achieve a pardon; and I remember that when I reported to Hitler at the time I emphasized that these old people had not so strongly participated, I advocated their pardon, but I got cold refusal from Hitler. This did not keep Schlegelberger, in other cases, to suggest a pardon if human extenuating circumstances could be applied; may be that the people were old, or were dependent; or, were ruled by somebody; or, were subjected to bad influence; were forced, etc. Also, the usual negative decisions by Freisler did not keep him from doing so--it did not keep him from suggesting a pardon in spite of that. I was always under the impression that Schlegelberger was an opponent of the too severe sentences of certain Special Courts; also, against considering the facts under a more strict point of view under new laws which often provided for the mandatory death penalty; and that he saw as one of the possibilities of mitigating these too severe sentences, this method of asking for clemency.
I was also under the impression that the competent Referenten of the Ministry of Justice supported Schlegelberger absolutely in this concept.
Q.- From working on the clemency question do you know the case of the President of the Jewish Community in Nurnberg, Leo Katzenberger?
A.- Yes, I remember that case for two reasons: One, the opinion of the death penalty by the Special Court was a wrong one, according to my legal thinking: Katsenberger was charged with racial pollution and therefore, he should have been sentenced only for a penitentiary sentence. The court, however, here, if I may use the legal expression, considered it a so-called qualified racial pollution case, saying that this intercourse which was forbidden by law, between Katzenberger and the non-Jewish woman, took place under the protection of the black out and, therefore pronounced the death sentence. And, secondly, I remember that case because Katzenberger was 70 years old or even older. Schlegelberger discussed this case in particular with me. He, too, held the view that the legal opinion was wrong; and, he, too, made efforts to get a pardon. As far as I remember that case extended over a rather long period because Freisler was opposed to it, because the Gauleadership in Nurnberg was opposed to a clemency, too, in spite of that, the case was submitted and the reason that was given was the advanced age of the condemned person; and, in consideration of the fact that a man over 70 was concerned, I reported to Hitler and tried to get a clemency -- without success the sentence was then executed. That was in the summer of 1942.
Q.- Do you know that on order of Himmler, inmates of prisons were taken out of the prison by the police or were transferred to the police?
A.- Yes, such cases I remember already from Guertner's time in office. The first case of that kind was the famous case of the brothers Sass in Berlin who were robbers; they were well known bangsters who committed numerous robberies, mainly bank robberies, and repeatedly had es caped from penitentiaries.
After a carefully planned attempted bank robbery at the Wittenberg Place in Berlin, which attempt was interrupted by the police, they fled, they were arrested in Denmark, extradited to Germany, and now from the penitentiary in Berlin they were taken out by Himmler's people, in order to be brought to a special prison, and a few days later it was announced in the newspaper that because of resistance or attempts to flee, I do not remember exactly, they had been shot. Already at that time Guertner told me that he did not believe that there was resistance or attempts to flee because one of these two Brothers Sass, was shot at when he tried to flee, and was brought into the prison on a stretcher. Later on, there was one or more similar cases, which I do not know any more, and Guertner spoke to me about these cases, and with a great deal of indignation Guertner spoke against the attempts of Himmler at introduce an administration of justice which was to correct or supplement the regular administration of justice. Guertner also discussed this with Hitler. I also want to say here that in the other cases outside of the case Sass, there were cases were people had been sentenced by ordinary courts in accordance with the law and now were imprisoned in a prison but Himmler or other people considered these sentences inadequate. The result of these remonstrances on the part of Guertner was this law or this order of 16 September 1939, yes 16 September 1939, in which the right of extraordinary objections against sentences which had legal force and which were pronounced by ordinary courts was introduced. I believe, sentence had been pronounced, if it could be supposed that the court had been in error in its legal opinion, but this extraordinary objection was limited to being ordered by the Fuehrer and Reich Chancellor, and as far as I know only the Ministry of Justice exercised it. It was not used very often. Then, the right of extraordinary objection, also under Guertner's influence who wanted to prevent that such acts of police penal administration of justice happened was supplemental through a Fuehrer decree of 21 April 1940 -- something like the 21st -- by introducing the nullity plea which could be used in favor as well as against the condemned person in appealing from sentences which had legal force, and this nullity plea could be made by the Ministry of Justice as well as by the general public Prosecutor, and also by the Defense Counsel, And the nullity plea was made use of extensively.
Guertner hoped by this means to oppose Himmler's efforts to introduce a Gestapo political administration of penal justice, and this is what had cause his actions.
Q.- Did the Ministry of Justice accept Hitler's instructions without objections or did it to do something against it?
A.- In spite of all the opposition, something was achieved in a few cases. Guertner already in spite of everything, in spite of this nullity plea, -- cases did occur frequently in which Gestapo people showed an order by Himmler, and took people out of the penal institutions. Guertner the complained about this to Hitler. He achieved that Hitler promised him he (Hitler) would inform Guertner, if he had empowered Himmler to do such a thing, so that Guertner would again have the opportunity to express his opinion against this and to correct possible wrong information. Hitler promised him this and in practice this is the way it worked out: When Hitler again gave Himmler such power to act, it was usually after Himmler had seen him, then Hitler ordered that Guertner, or later on Schlegelberger should be informed about this by me. Schaupp, Hitler's adjutant, usually called me up and said the Fuehrer has ordered that the person who was condemned by this court on this date, and sometimes it said the person who was in a prison, in this and this place, should be transferred to the Gestapo -- the expression that was used, was always: to be transferred to the Gestapo. I then informed Schlegelberger by telephone; in several cases, however, Schlegelberger was informed directly by Schaupp. I cannot now remember how many cases went through me, but there were not very many, perhaps 15, 20 and several cases also of Schle gelberger's I read later on in the newspaper that the man who had been transferred had been shot because he attempted to flee or offered resistance .I know that Schlegelberger came to me after the first cases of this kind, occurred, and uttered serious misgivings about these methods which began to be applied here, namely, the method that after a trial and a sentence which had legal force, then, on the basis of a very one-sided description, the Gestapo came and, on its own initiative, again introduced a new penal action.
Schlegelberger asked me to try and see whether I could not persuade Hitler to cease issuing such power to act, or at least whether I would not be able to succeed with him in having previously the Ministry of Justice asked to state its opinion and then to report about it. The possibility of this extraordinary objection and of the nullity plea did exist after all - that is, those I mentioned before.
Shortly thereafter, when I reported to Hitler on clemency questions, I told Hitler about these serious misgivings on the part of Schlegel-berger and the Administration of Justice. Hitler thereupon told me in a long-winded speech, Yes, but we are at war now, and it was necessary to prevent the criminal groups at home from englarging. They would be favored through the blackout and other conditions created by the war, and one would have to act more strictly and severely. These criminals were not kept in adequate safety in the penal institutions. The personnel of these prisons, during war-time, consisted predominantly of old people because the younger people were at the front. Therefore, several escapes had occurred. Moreover, the people in prison were not used for work as intensively as they were being used in the concentration camps and other penal institutions created by Himmler. Therefore, he had given such instructions. He stated -- and I remember the exact, literal wording that he used "However, if there is resistance or attempt to flee, we shall deal with it in short order." However, he did not admit that the transfer as such meant execution.
I reported to Schlegelberger about this conversation with Hitler and said that nothing more could be obtained. However, I do know that in cases concerning these instructions for transfer, which went via me frequently, the Ministry of Justice - especially if Hitler's instructions were based on a newspaper notice about the crime reported and corrected the description of the facts, as the newspaper notice was misleading.
Schaupp, and other adjutants of the Fuehrer, had occasionally told me that without the initiative of Himmler, Hitler spontaneously when he looked through the newspaper, would say that the sentence was too mild, and he would say, "This man should be handed over to the Gestapo." In such cases, in a few instances if I remember correctly, the resistance of the Reich Ministry of Justice was successful.
There are other cases which I don't know, but I know that repeatedly, on order of Schlegelberger, his Referenten tried to create a different conception with Himmler and the Gestapo to prevent an execution from taking place. To what extent they were successful I do not know, because these things did not go through me; however, I know that especially Ministerialrat Joel made efforts in these cases with the Gestapo.
Q What was Himmler's relationship to the Administration of Justice?
A I can not state that exactly, but I assume, from his entire character, that it was the same as Bormann's; that is, more severe than Hitler himself, and that he was the driving force who wanted to introduce this police administration of justice or this Gestapo administration of justice, who would have liked to condemn all criminals through his organization rather than leave them to the legal Administration of Justice.
Q To a certain extent, was a cooperation of all officers of the state, especially among the ministries themselves, with the Propaganda Ministry necessary? Did some diagonal connections have to be created between them? Was that a new institution in the Third Reich?
A I did not quite understand the question, these diagonal connections.