Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Altstoetter, et al, defendants, sitting at Nurnberg, Germany on 18 September 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, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom.
THE PRESIDENT: Let the proper notation be made.
MR. KING: The prosecution calls at this time the witness Judge Walter Buhl, B*U*H*L, from Hamburg.
JUDGE WALTER BUHL, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and be sworn. Repeat after me the following oath:
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.
BY MR. KING:
Q For purposes of the record, Dr. Buhl, will you give us your full name and present address?
A Walter Johannes August Buhl, Hamburg-Bergedorf, Nettelnburg, President of the District Court of Appeal at the Hanseatic Court of Appeal; born 9 April 1899 at Hamburg.
Q Can you tell us, Dr. Buhl, what your position from, let us say, 1933 until the end of the war was in the Hamburg judicial system?
A From 1929 on I was Regierungsrat in the District Justice Administration of Hamburg.
Then, in 1933, I again became a judge at the local court of Hamburg, and I remained in that post until 1 December 1946, when I was promoted to the position of a judge at the District Court of Appeals.
Q Yes. Were you a member of the Party prior to the-
A Since 1 May 1937.
Q To your knowledge, Judge Buhl, were your colleagues and other members of the Justice Administration in Hamburg submitted to pressure to join the Party beginning with the rise to power in Hamburg?
A Yes. In 1933 the members of the District Justice Administration, the judges and the officials of the Administration of Justice, were requested to join the Party. This request was in part oral and in part it was a written request by way of certain circulars which were issued. I know of it specifically only as regards the Justice Administration of the District. The request was issued to its members at the time to join the Party.
Q At least in the early stages, from 1933 until the date you joined the Party in 1937, who was responsible for the pressure on officials in the Administration of Justice in Hamburg to join the Party?
A That was the then Senator Dr. Rothenberger, who was the Chief of the Administration of Justice and who attached importance to having all members of the Administration of Justice join the Party, as far as their joining the Party was possible, that is to say, as far as they were not persons of mixed race or that they did not belong to the Free Masons Lodge and were not permitted to join the Party.
In 1933, however, no pressure was exerted on me personally, for example, because I was perhaps not quite eligible to join the Party. Dr. Rothenberger knew that and therefore he refrained from urging me to join the Party.
Q Did Dr. Rothenberger's attitude concerning you change later, some time prior to thee time you actually joined in 1937?
A No.
Q Was the campaign on the part of Senator Rothenberger to have members of the Judicial Administration in Hamburg join the Party--was this campaign intensified about the time you joined, in 1937, according to your best recollection?
A Yes. However, the effort that was made at that time was that all members should join, and we were told that those who did not join the Party would have to go and see Dr. Rothenberger and tell him the reasons for not joining the Party. To all of those who had any political misgivings, that meant that they would have to join because otherwise they would have to express these political reasons, and due to the situation at that time, that was impossible. I also know that some of my colleagues made personal visits, but I do not know what the result was. In any case, all of them joined the Party.
Q Do you understand what is meant by the "Fuehrer principle"?
A Yes, I do.
Q Will you tell the court just briefly what your conception of the Fuehrer principle is?
A The concept of Fuehrer principle is that nobody takes over responsible leadership and in accordance with his own ideas and attitudes, exerts certain guidance. Somebody becomes the chief and assumes responsibility towards the outside for everything that goes on in his agency.
Q To the best of your knowledge, based on your observations, did Rothenberger apply the Fuehrer principle in the Hamburg Administration of Justice?
A Yes, he was the Chief of the Administration of Justice and the leader, and he absolutely considered himself to be the leader of the Administration of Justice and was regarded as such too.
Q Do you know when Rothenberger joined the Party, officially at least?
A Yes. Before 1933, as far as I know-
Q You say before 1933?
Before 1933, in my opinion, he did not belong to the Party. At that time there was some talk about the fact that on the day when he became Senator he joined the Party, and then his joining the Party is supposed to have been pre-dated.
Q Do you have any idea as to why his membership in the Party was back-dated?
A Well, of course, I have no knowledge about that, but I assume it was because Dr. Rothenberger, before 1933--after he had left the Administration of Justice as District Court Director--had made contact with the NSDAP, especially with the later Gauleiter Kauffmann, and I believe he also worked for the latter somewhat at that time. At least, the public knew about that from some expert opinion that was issued in some kind of a civil suit, and at that time it became known that Dr. Tothenberger was the author of this expert opinion for the NSDAP. However, I know no further details about it any more, but I assume that was why the membership was pre-dated for that time later on, because at that time his close contact with the NSDAP began. However, those are pure assumptions on my part.
Q Yes. Judge Buhl, is the name Fuhlsbuettel familiar to you?
A Yes.
Q What is it, please?
A Until 1933 Fuhlsbuettel was a prison institution; it was partly a jail and partly a penitentiary.
Q Can you give the history, the subsequent history after 1933, of this prison?
AAfter 1933 a part of this prison was handed over to the police in order to enable them to put their prisoners there, because the number of their prisoners after 1933, and particularly in 1933, increased considerably and there was no other place to put these many police prisoners.
Therefore, part of Fuhlsbuettel was placed at the disposal of the police in order to put their prisoners there.
Q: You have heard the term "concentration camp", of course. Would you say that prior, or subsequent to 1953, Fuhlsbuettel was operated very much along the lines of a concentration camp?
A: Yes. Of course, one has to distinguish between the prison that was subordinated to the Administration of Justice, and that institution which was subordinated to the police. As far as the prison was concerned, it was an Institution for prisoners who were subordinated to the Administration of Justice; and as far as that part is concerned which was subordinated to the police, this institution became a concentration camp institution, which later was transferred to Neuengamme. However, I cannot say with certainty when that took place, and I don't know whether the concentration, camp at Fuhlsbuettel was dissolved with this transfer or whether it continued.
Q: Neuengamme was a recognized concentration camp, operated as such, near Hamburg; is that right?
A: Yes. Neuengamme was a large concentration camp which existed until the surrender, and it is an internment camp today.
Q: Judge Buhl, did you ever hear of any instances of mistreatment of prisoners -- the political prisoners, the police prisoners -- in Fuhlsbuettel?
A: Yes; about police prisoners, yes, but not about prisoners in detention pending investigation. As early as 1955 police prisoners were mistreated in the City Hall and also in Fuhlsbuettel, and that, at that time, was the terror which was exerted upon the population through the then Commando ZBV, that is, "Zur besonderen Verwendung, for special purposes, which picked up these people and interrogated them. During these interrogations there were abuses, and sometimes serious abuses, and on occasion people were tortured to death.
Q: Do you recall any specific instances of more notorious character that you could tell us about?
A: Well, most of these things were rumors current among the population. A few cases are known to me personally. One is the case of Buch from Neubruecken, and Neubruecken is a place which is adjacent to where I live. This mam was tortured to death, and was burned, without his relatives being afforded an opportunity to see his corpse.
A second case is known to me from Volksdorf, where somebody else was tortured to death in 1933. His relatives were also forbidden to open the coffin, and he was buried that way, without the coffin being opened.
Concerning mistreatments, I personally know one case through a friend of mine who was also in protective custody in the City Hall for a short time in 1933. He was put in with another man, who at first considered him a police informer, but who then got into a conversation with him, and, after some inhibitions, later, when he was asked about abuses, raised his shirt and showed this friend of mine that his body was completely beaten up and black and bloody.
Moreover, I also know that people who belonged to the parties of the left were mistreated in part, at that time, because they wanted to get confessions from them. However, names of people of that kind are not known to me personally.
Q: You say the incidents which you have described were -- that is, that was fairly common information, at least among the members of the Judicial Administration in Hamburg?
in Hamburg?
A: Yes, that was known not only among the Administration of Justice but among the entire population, because that was the system which was initiated in order to exert pressure upon the population and in order to remove political resistance by means of this terror. Therefore, every political resistance movement was killed at the beginning, and nobody dared to pronounce any criticism because they would run the danger of being put into protective custody and then mistreated. In this way the population was made afraid, and the aim was to make political resistance impossible.
That was the system that was introduced against political opponents in 1933. That was not a secret here in Germany, that was a well known fact, because the Commando ABV-- that was the predecessor of the Gestapo -was extraordinarily feared for that very reason. If it were only a question of putting people into prison, some political fighters would have put up with that. However, more was connected with it; there were the serious tortures and the danger to life that were connected with these arrests.
Q: Is it conceivable to your mind, Judge Buhl, that at this time the knowledge of these abuses, tortures, and murders did not come to the attention of Dr. Rothenberger? Is it conceivable that he could not have heard of those things or did not hear of them?
A: No, I don't consider that to be possible, because he must have known that too.
Q: You mentioned a moment age, Judge Buhl, the term "protective custody".
A: Yes.
Q: And you said there were numerous instances of protective custody in Hamburg that came to your attention. Now, may I ask you, concerning that general problem, was it common knowledge among at least the members of the Judicial Administration at Hamburg that there was such a practice as protective custody?
A: Yes, this protective custody was exercised generally at that time. Allegedly, it was said that it was done in order to protect the people against the rage of the population, and there were alleged cases of corruption at that time. For a long time this protective custody was handled quite arbitrarily by having officials of the police take people into custody and leave them there until they considered the right moment had arrived for releasing them. What we, in our judges' circles, were quiet angry about at the time was that this protective custody was exercised after a judge who had seen a prisoner in order to decide whether he should be kept under arrest or not -- had decided that this man was to be released, and the person concerned was then taken into protective custody by this Commando ABZ. At that time we were still under the impression, or had the entire concept, that the judge was the only person who was to decide about the liberty of a person, and this method, persisted in by the police, of course aroused justified anger among us judges because we considered that absolutely illegal.
Later on this protective custody was somewhat regulated. Certain instructions were issued, according to which the Chief of the Gestapo was competent for issuing the warrants of arrest.
These warrants for protective custody, after a certain time, were supposed to be reviewed by him. However, as far as I remember, this happened many years later.
Q: Now, prior to the time, Judge Buhl, that a slight tinge of legality was given to the practice of protective custody, do you consider it unlikely that the practice of protective custody in Hamburg could have continued as you know it did without some sort of understanding between Senator Dr. Rothenberger and the head of the Gestapo, Streckenbach, in Hamburg?
A: Of course, it is very difficult for me to answer this because I do not know at all what went on at that time between the Administration of Justice and the police and what agreements were made between them. I can only conclude that as to the manner in which protective custody was practiced at that time, the Administration of Justice was powerless against it. Whether this was due to an agreement, or whether the political line that was followed by the Party and the police was stronger at that time -- it must have been that; it is very difficult for me to evaluate these different conclusions.
Q: Do you believe that it would have been impossible or improbable, I should say -- do you believe it would have been improbable that Dr. Rothenberger did not know of the practice of protective custody as it occurred in the period which you are discussing?
A: Dr. Rothenberger must have known that, because it was a matter of general knowledge that protective custody was practiced by the police.
Q: Judge Buhl, were you in Hamburg immediately after the events of the 9th and 10th of November 1938?
A: Yes.
Q: Did you personally observe the extend of the damage done to Jewish enterprises, shops, and stores in Hamburg following the attacks at the time?
A: Yes. On that day I went through the inner city of Hamburg and partly through Altona. At that time I saw extensive destruction of Jewish stores and businesses in the inner city. The excitement and rage of the population was, in part, very large, because, senselessly, many things were destroyed and some were thrown into the canal, and in some cases things of great value had been destroyed. If I remember correctly, the stores were marked with insignia applied with red paint. They were all more or less destroyed; window panes were broken and the stores were robbed.
Q: Let me ask you, Judge Buhl, did you see, on your trip through the city, as you recollect now, any Jewish shop or store that was not damaged?
A: As far as those stores which were marked were concerned, they were destroyed or the window panes were broken and the stores were robbed. In any case, if there was my store that was especially marked that was not robbed or damaged, I did not notice that on this walk, and I should have noticed it because that was the very purpose for which I was going through the city in order to look the thing over.
Q: You were In the Hamburg system of Justice in 1933. Do you recall what Dr. Rothenberger's action was concerning the Jews, beginning in 1933, who were employed in the Administration of Justice there?
A. Yes, As far as full Jews were concerned, as far as I remember, they were at that time not dismissed but pensioned; except for one gentleman whom I remember ---that was Herr Valentin, who at that time remained in office. Whether any other people remained in office, I cannot state with certainly at the moment. But I know that a number of Jewish judges and prosecutors were during the first days at that time discharged; that is to say, not discharged without receiving a pension but discharged and received their pension.
Q. As far as you know, was Rothenberger responsible for these discharges at that time?
A. Yes. He was, after all, the Chief of the Administration of Justice, and he undertook these discharged.
Q. How long did the discharge Kews continue to receive their pension, if you know?
A. A number of years; in any case. later on, the law for this restitution of professional civil service was issued which also contained some rules governing the problem. And whether that was before the war or only during the war when the payment of these pensions was discontinued---I cannot state, because I did not have an special interest in that problem. In any case, for a number of years these pensions were paid, partly they were also transferred to foreign countries. I know for example, one prosecutor, Dr. Stein who went to Italy at that time, who received his pension in Italy. It was sent to him there.
Q. The Prosecution has no more questions to direct to this witness.
CROSS EXAMINATION BY DR. WANDSCHNEIDER:
Q. May I begin the cross examination of this witness? Witness, you know the defendant Dr. Rothenberger from the time before 1933?
A. Yes, I do.
Q. Were you together with him in the Hamburg Administration of Justice?
A. At that time, I was Government Councillor in the Administration of Justice, and Dr. Rothenberger was Senior Government Councillor. Our office were next to each other.
Q. What position did you have at the time and what position did Fr. Rothenberger hold?
A. Dr. Rothenberger was Senior Government Councillor, and worked on civil cases; and I was Government Councillor and worked on penal and prison matters, and later clemency questions.
Q. Dr. Rothenberger was working in civil questions at the time?
A. Yes, he was.
Q. After the seizure of power in 1933, Dr Rothenberger became Chief of the Administration of Justice, and in answer to the prosecutor's question, you described the conditions after 1933. I shall go to the main point right away: that is the concentration camp Fuhsbuettel---or, that is to say, the police prison. Was the concept "concentration camp" a definite concentration camp at that time, or was it called the police prison?
A. The actual concept "concentration camp" originated only lately on, as far as I remember. At first, it was called only "police prison" or concentration camp" because the abbreviation was Koltu.
Q. You remember that Kommando Z.B.V. took over these police arrests. Is it correct in the rest of Germany and Hamburg, too that the revolution or transitory conditions from the point of power politics brought obscure conditions also, especially for the Administration of Justice, that all of us did not know how the Administration of Justice would develope, especially in view of the development of the Party itself?
A. The conditions were, of course, obscure, because withing the Party, as far as one could recognize it, the different movements were at work. Part of the still had the efforts to continue the so-called revolution. To that extent, the conditions were, at least at the beginning, still not clear, because one did not know which movement would suc ceed.
Q. Do you distinguish between a special activist revolutionary and a moderate revolutionary group? Since you are from Hamburg, and I am too, I would like to name the name of the deputy Gauleiter Henningsen. I would like to recall this name to your memory, and Gauleiter Kaufmann. Was Henningsen considered a man of this revolutionary activist group?
A. Henningsen was.
Q. has he generally considered a fanatic, a wild man?
A. I cannot make any details statements about this, because to the Party groups and the internal affairs of the Party, I had not contact with him at that time. I have no knowledge about these matters. I only know what I was told.
Q. Of course. How, you knew Dr. Rothenberger from the time of before 1933? Dr. Rothenberger was put into a development which, without exaggeration could be described as revolutionary. Was Dr. Rothenberger by nature a man who was willing to have order, objectivity, and moderate justice prevailing, and help it to succeed, from your personal knowledge of Dr. Rothenberger?
A. I, personally, had the impression that Dr. Rothenberger made efforts to have the aims, or let us say, his tasks executed to the effect that as far as possible he could maintain the concept of the old constitutional state, but in many points he did not succeed.
Q. Do you mean to say by this that the force of the conditions was stronger than Dr. Rothenberger's efforts in many cases?
A. I am unable to judge that. I also do not know to what extent Dr. Rothenberger personally took steps for or against it. In some cases in my opinion, he might have made stronger efforts in order not to let certain abuses arise.
Q. Witness, one of the main problems for National Socialism was without doubt the Jewish problem. Do you know that particularly because of their attitude on the Jewish problem, Party members got into great diffi culties if they even approached an attitude that might have been described as philo-semitic--pro-semitic, especially in Hamburg?
A. All right. May I now, in regard to Jewish and half-Jewish judges in Hamburg, cite some names to you in order to refresh your memory. Now, do you know half-Jewish judge, Dr. Rohwill?
A, Yes.
Q. Do you know District Court of Appeals judge Dr. Friedburg?
A. Yes.
Q. Do you know District Court Judge Dr. Kaufmann?
A. Yes.
Q. Do you know the full Jewish judge Walentin? You already mentioned him, as you have to answer "yes".
A. Yes.
Q. Do you know further Senate President Dr. Falk?
A. His name I know, yes.
Q. Do you know Local Court Judge Dr. Eraun?
A. Yes.
Q. And there are a number of other judges. Do you know that the majority of the half-Jewish judges, that is of mixed descent, until 1935 were kept in office by Dr. Rothenberger far beyond the time when he could have removed them if he would have given in to the pressure that was exerted by the Party?
A. I only spoke about the full Jews before.
Q. Yes, that is right. And it is correct that the half-Jewish judges were kept in office by Dr. Rothenberger and only dismissed later on?
A. I assume, on the basis of the Law for the Restitution of Professional Civil Servants.
Q. Yes, has that consider a courageous and sensible act, a humane act on the part of Dr. Rothenberger that he did that against, undoubtedly, pressure by the Party?
A. I cannot say anything definite about that because I do not know what extent the pressure was exerted by the Party in that respect at all.
Q. Witness, may I interrupt you? Of course, you cannot know this in regard to concrete cases. I am only speaking about the general pressure of the Party which was exerted in regard to the Jewish problem generally and you affirmed that.
A. That was directed first against full Jews. To what extent in other agencies and businesses, persons of mixed blood were dismissed too, I cannot answer. But in any case, it is correct that if Dr. Rothenberger would have been an anti-Semite, and logically he could, without doubt, have dismissed the half-Jews too, and nobody would have done anything about it if he had done so.
Q. In Hamburg loyal circles, was it regarded as very decent and humane and were people thankful for it that Rothenberger saw to it that the pensions were paid to foreign countries, and that he overcame foreign exchange difficulties to pay these pensions to judges in foreign countries? Did Dr. Rothenberger see to that?
A. That fact exists. I already emphasized it before, and that these gentlemen were dismissed at that time and received their pension was at that time something that was more a matter of course at that time than it is perhaps today, because pensioning people off--dismissing them as such--was a strong interference with the civil service privileges which those gentlemen had. Perhaps they might have been dismissed too without being paid a pension, and that it did not happen was appreciated generally.
Q. Furthermore, you said that Dr. Rothenberger felt that he was a Fuehrer personality. This can be interpreted as a Fuehrer--a leader in a specific National Socialist sense--and can it also be interpreted differently. How I want to ask you, quite independent of political situations, was Dr. Rothenberger an autocratic personality who very much quite independent of political conditions to give orders and to make decisions and to make plans?
A. Of course, it is very difficult to answer this question, because these two things are difficult to separate. Naturally, in accordance with this entire personality, Dr. Rothengergen was a person who was absolutely and autocrat and certainly governed and ruled, and the decisions were mostly made according to his own discretion, and therefore he was absolutely considered a leader of the Administration of Justice.
Q. I am asking you that because you know Dr. Rothenberger from the time before 1933, when the influence of the National Socialist Party could have not existed yet, and the point of question was to ask you whether on the basis of your knowledge of conditions before 1933, you considered Dr. Rothenberger an autocratic personality?
A. I can affirm that absolutely. I know, for example, that before 1933, Dr. Rothenberger was serving as Commissar for agencies, especially with the Board of Healt, and there he did not enjoy a very good reputation because he was very autocratic and saw to it that the services were reduced, and he executed that very dictatorially and autocratically.
Q. Was that as it was desired by the Bruening Cabinet at that time?
A. Absolutely.
Q. You then mentioned that Dr. Rothenberger exerted pressure on the judges to join the Party. That is a fact which is, without doubt, correct because he wanted that these judges should join the Party. Can you tell me anything about what motives were responsible for Dr. Rothenberger's wanting to have the judges and prosecutors in a party or in am affiliated organization of the Party?
A. It's very difficult to answer that question, because then first of all, one would have to speak about Dr. Rothenberger's personality in general and would have to be clear about this. If I may voice my conviction, I was of the opinion until the end, that basically, Dr. Rothenberger was no-one-hundred percent National Socialist of the purist sort, and therefore he made efforts to remove these difficulties which he probably had with the Party by these measures which he took, and therefore he was anxious to have the Hamburg Administration of Justice, especially exemplary in the National Socialist sense, at least to outsiders.
Perhaps he was guided by the point of view that through this outside forming of the Administration of Justice that he would be able to achieve a certain freedom for their processes within the Administration of Justice, and that must be appreciated absolutely in order to have certain tendencies avoided and not have them as strong as strong as they would otherwise have been.
Q. You were speaking about the conditions in Fuhsbuettel in 1933 and 1934. Do you know anything about abuses and bad incidents in 1941, '42, witness?
A. Concrete incidents? No.
Q. You only know them from the time about which you spoke?
A. That continued throughout all these years, of course, and that resulted in this terrible catastrophe of which millions of people became the victim.
Q. You mean during the war. But I am referring to the time before the war. Do you know from the time before the war, after Dr. Rothenberger assumed a prominent position in Hamburg, that he took steps against these persons who were the originators of these abuses in the SS, especially against the Schwarze Corps and other National Socialist publications?
A. To what extent Dr. Rothenberger took steps against these abuses , I do not know. What I charged him with, in my opinion, was not acting strongly enough against the first abuses in the prisons and the mistreatments, because that was the beginning of this horrible end that all of us experienced. On the other hand, I do know that against these attacks in the Schwarze Corps, in particular, he took even energetic steps. In any case, in his statements which he made to the judges, he expressed quite clearly that he disapproved this attitude of the Schwarze Corps, and he made efforts to eliminate their attacks at least against the Administration of Justice of Hamburg , and that he had made certain agreements in accordance with Gauleiter Kaufmann.
Q. A further question in that connection, witness. The incidents which the prosecutor put to you, we do not have to mention. They are mean and horrible, and you expressed that also. But seen as a whole, was Dr. Rothenberger a man who in his own mind affirmed and approved these conditions, or a man who wanted to take steps against them, but for weakness or other technical reasons did not do anything about it?
MR. KING: I want to alter an objection against that question because I don't think it's within the competency of this witness to know what Dr. Rothenberger's inner feelings were on this very highly moral question.
DR. WANDSCHNEIDER: May I say something about that, Your Honor, quite briefly. I would not have put that question unless ----. I put this question only because the witness knows Dr. Rothenberger very well. If it would have been a general question of an expert, I would not have put it. He knows him for years before the seizure of power, and I believe that the Tribunal will take that into consideration.
THE PRESIDENT: The witness may answer.
DR. WANDSCHNEIDER: Thank you very much.
THE WITLESS: May I ask you then to repeat your question briefly?
BY DR. WANDSCHNEIDER:
Q. Yes, of course. I said, witness, that these incidents were horrible which the prosecutor told you of. There is no doubt about that. My very clear question was this: whether on the basis of your very exact knowledge of Dr. Rothenberger's personality, even from the time before, 1933, you are of the opinion whether Dr. Rothenberger disapproved of these conditions, as any decent human being, and only because of weakness or because of the revolutionary development or any other reasons could not take any steps against it because his position was not strong enough yet.
A. I am of the opinion that in his own mind, Dr. Rothenberger, just as all of us judges, at the time, as a closed group rejected these incidents -- disapproved of them -- because he is not a person of a character who approves of such matters; but that he didn't take any steps against these matters and let them go on, that is due to the fact that he did not have sufficient influence in the Party. On the other hand, he was anxious to keep his position at all costs, and due to this weakness, I would like to say he did not consider himself strong enough to take steps against these abuses which he, himself, disapproved of strongly.