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.
Q Did there have to be some diagonal connections among the ministries? For example, did the ministry of Justice have certain connections with the Propaganda Ministry, and did such connections already exist before the Hitler Government?
A Before the Hitler Government, the Chief of the Reich Chancellery was a central office, and in the cabinet meetings, which took place every week, the possibility of a common organ existed. Later on, during the war, these connections were loosened considerably, because since the beginning of 1938, there were no cabinet meetings at all. The diagonal connection, therefore, existed directly between the ministries, and the Propaganda Ministry quite frequently interfered in matter's of other departments under the point of view that it - that is, the Propaganda Ministry - was responsible for the morale of the population.
Q In practice, what did people have to observe if they wanted to oppose Hitler's orders or the orders of the Party? What tactics did one have to use? Could one fight against these things in a direct polemic, or how did one have to act?
AA direct crimicism would, without doubt, have been dangerous. It would have resulted in having the person concerned removed from his office, and supposedly he would have been sent to a concentration camp, and it would have been without effect. It was more effective, through direct influence, or personal contacts or connections, to attempt to make conceptions more lenient, to achieve changes, or to sabotage orders of that kind quietly; that is, not to carry than out as severely as the order provided.
DR. KUBOSCHOK: Thank you very much. That concludes my direct examination.
THE PRESIDENT: We will take our morning recess for fifteen minutes at this time.
Before we recess, gentlemen, do any other of defense counsel desire to examine this witness as their own?
(Show of hand by Dr. Brieger) Very well, we will recess for 15 minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. BRIEGER (Counsel for the defendant Cuhorst.):
Q. Witness, in the interest of my client I would like to put one brief question to you. You mentioned before the Special Courts, which were frequently too severe. Did you mean to apply that also to the Special Court at Stuttgart?
A. No. I do not know anything about the sentences of the Stuttgart Special Court.
DR. BRIEGER: Thank you. That is sufficient.
THE PRESIDENT: Is there any further direct examination on behalf of any defendant? There appears to be none. The Prosecution may cross examine.
BY MR. LAFOLLETTE:
Q. I believe you testified on direct examination that the extraordinary appeal could be instituted by the defendant.
A. No, no. I have said expressly, the extraordinary objection could only be instituted upon directive by the Fuehrer, through the Ministry of Justice. The nullity plea, however, according to the decree of April 1942 -- the nullity plea could also be instituted by the defendant or the counsel for defense.
Q. .....I beg your pardon .... were you finished?
A. Yes.
Q. With reference to this nullity plea, the defense made the request to the prosecution to institute the plea, that is the correct construction of that law, is it not?
A. I am not quite informed about the details as to where that request had to be made, but I know from practical experience that in various cases upon request by the defense the nullity plea was dealt with and led to a reopening of proceedings before a different court.
Q. You still don't know -- you say as a matter of your knowledge of the law ... that in any such cases the defendant, through his counsel, had to first make application to the prosecutor, who then filed the plea, if he approved it .. is that correct ..or do you know?
A. I don't know that for certain because with these proceedings I had nothing to do personally.
Q. You testified about a request of the defendant Schlegelberger.. maybe more than one .. for you to labor for Hitler - Schlegelberger's request that Himmler be restrained in his activities in taking men from the courts after they had been sentenced and putting them in the hands of the police for disposition of their matter b the police?
A. Yes, that I have spoken of , in particular, of one case.
Q. That was the time I believe that you said Hitler told you that you are in the war now, and that in substance this matter of dealing with criminals had to be accepted because if not the criminal group would get out of hand or be favored, and that you reported this conversation to the defendant Schlegelberger?
A. Yes, I informed Schlegelberger about the result.
Q. Do you recall when that was that you informed Schlegelberger of that result?
A. That was in the beginning of Schlegelberger's term in office-I assume the summer or fall of 1941.
Q. And you testified that, in describing Hitler's attitude towards the Administration of Justice, Hitler, by nature, was disposed at least to place little value on, if not to undervalue, matters of religion or morals or theoretical concepts of the non-power state , and was concerned in the power state as a practical way of living, and that the Administration of Justice in such a state should follow the concept of the power state. I believe I have approximately paraphrased your statement, have I not?
A. Yes.
Q. Dr. Meissner, did you serve under ... were you in government under the Kaiser before the first World War?
A. Yes, I am in the civil service since 1901, and under the Kaiser I was Regierungsrat in the end, in the Alsace - Lorraine.
Q. You served Ebert and Hindenburg, who were presidents under the Weimar Republic, is that right ?
A. Yes.
Q. And then, what was your position under the Hitler regime, at first?
A. My position on the surface was the same. I was the Chief of the Secretariat of the Reich President. The name of that office was changed to the Presidential Cabinet at that time. My tasks changed insofar as after the death of Hingenburg, by a so-called law concerning the head of State, the functions of the head of the Reich, and thus of the Chief of the government, were merged in one person - and thereby the political tasks which I had had up to that time, reverted into the hands of the then Under Secretary and Chief of the Reich Chancellery, for me there remained only representative matters of the head of the state, such as the appointment of officials, promotions, honors, and awards, matters of clemency which have been mentioned before, contacts with heads of other states and diplomats.
At that time I asked for my retirement, and when Hitler refused that I said that by that merger of these two offices my position as a liaison man between the head of the Reich and the Reich government had become vacant and unnecessary, and that I did not any longer see that I had any field of work. Hitler, however, rejected my application for dismissal, asked me to remain in office because ....
Q. Excuse me -- just a moment ... What time was this ... What year was this?
A. I am speaking about the beginning of August 1934.
Q. Thank you. Go ahead.
A. He said that he should make use of my experiences in other fields outside of the political field proper, and that was his main reason that perhaps later on he would decide to separate again these two offices of the Head of the State and the Chief of the Reich Cabinet, that, therefore, he would like to leave intact the two offices for the time being.
Q. I think you said also that in your opinion the criticism of the Administration of Justice, and the assertion of the concept of the highest judicial office of the state with the power to remove judges which was the essence of Hitler's speech of the 26th of April 1942, was not spontaneous -- from which I conclude it was not a surprise to you, is that right?
A. Yes.
Q. When did you first know Adolf Hitler?
A. I met Hitler for the first time in January 1932, when the election of the Reich President took place, and the reelection of Hindenburg was discussed with the parties.
Q. Did you arrange the first meeting between Hitler and Hindenburg on October 13, 1932?
A. Yes, I arranged it, and I attended it.
Q. At that time you were serving Hindenburg in the Hindenburg administration, is that right?
A. Yes.
Q. Prior to 1932 how many campaigns had there been in which the National Socialist Party had received substantial votes and elected substantial members of the Reichstag?
A. The first election victory was in 1930; then, in 1932, the fall election, the second election; and then, finally, the elections of 5th of March 1933.
Q Now during these campaigns, Hitler of course, was active as a campaigner and a maker of speeches, was he not?
A Yes, indeed.
Q And was it as a result of these speeches and this knowledge which you had and acquaintanceship with Hitler that you formed the knowledge of his opinion about the administration of justice which led to the condition where you were not surprised by the speech of April 26, 1942?
A No, during that time Hitler gave no signs that he would be a man of violence, a negator of the law, and of jurisdiction of the courts. On the contrary, at that time, he made himself appear, particularly in the conversations of 13 October and later with the old Reichs president von Hindenburg, a reasonable man who was inclined to come to an understanding with the buurgeois parties who only was a fanatical opponent of radical Marxism, communism in particular.
Q When did you acquire this knowledge then, that Hitler was unfriendly towards the administration of justice and had little opinion of concepts of religion and morals and personal liberty in the state? When did you acquire that knowledge?
A For the first time during or after the Roehm-Putsch, 30 June 1934.
Q The deaths which took place in the Roehm-Putsch were declared legal by legislation, weren't they, right after that?
A Yes, that happened by a decision of the Reichstag of 7 July 1934.
Q How many parties were in that Reichstag?
AAt that time, there was only one party in the Reichstag.
Q From that action, you acquired the knowledge which you hadn't acquired prior to then from Hitler's speeches, that Hitler favored the power of state and was opposed to the concepts of the administration of justice which you knew to exist in Germany under the Kaiser and under the Weimar Republic. Is that right?
A For the first time, I had misgivings about the personel and the political intentions of Hitler, but I did not at that time at least think that this attitude of Hitler's was a fundamental attitude and a lasting one, but I entertained hope that quashing of the Roehm-Putsch and the violent action which occurred in connection with it could not alone be thrust at Hitler, that he could not be made alone responsible for them, but that by reason and influence of reason of the people upon him, people such as Guertner and Papen, he could be made to leave that path of violence after he would have understood what devastating consequences these murders and acts of violence would have in their impression on Germany itself and the foreign countries. That was also the impression that Guertner had, who believed that if now these matters would be legalized, which could happen only once, that thereby a final balance could be drawn under the epoch of the revolutionary transition.
Q Now if you can just a little more briefly, possibly, - can you fix in your own mind and tell us when you did reach the conclusion about Hitler's ideas about justice and the administration of justice which led you not to be surprised by the speech of 26 April 1942? That probably was a little bit -- sometime at least subsequent to 1934.
A No, when an increase of severity in Hitler's attitude toward penal cases during the war was seen, I considered it first a consequence of wartime conditions but in spite of that his speech of the 26th of April 1942, did surprise me because here for the first time in such frankness and severity, his entire attitude to questions of the law was expressed.
Q What year was the case of the taking of the brothers Sass by Himmler's police? That was during Guertner's time? A I could not state that date precisely but it was before the war, 1936 maybe, but I could not say or state it precisely any more.
Q And then the number of cases in which the people were taken by the Gestapo or other branches of the police, the Reich police, and were reported in the paper to have been shot while escaping, arose after that during Guertner's time and Guertner discussed them with you?
A No, these cases occurred, if I remember correctly, during the first years of the war.
Q Guertner was a friend of the defendant Schlegelberger, was he not?
AAs far as I could see, the two gentlemen had intimate friendly relations.
Q And Guertner discussed with you his misgivings over the extent to which Hitler was permitting Himmler to control the handling of prisoners in the administration of justice?
A Yes, Guertner frequently in private conversations voiced misgivings about the development which had taken its course and also mentioned his intention that with all the strength he wanted to counteract that.
Q Yes. Now would you say that Guertner was as good a friend of Schlegelberger as he was of you?
A I cannot say that Guertner and I were real, intimate friends, but we had very friendly relations just as I cannot say that I am an intimate personal friend of Schlegelberger. I had the relations of colleagues with him.
Q Yes. Now I think you said that if a man wished to oppose Hitler's policies it was not wise to use a direct attack but that you had to use personal contacts and indirection. That is correct, is it not?
A That is correct, yes.
Q That would apply to Schlegelberger as well as to anyone else?
A Yes.
Q You said that the danger was that a man who opposed by direct argument would be put in a concentration camp.