That was the standard procedure.
Q. Did you discuss the matter of whether or not State Secretary Klemm knew it or had participated in it or had approved it with Mr. Hecker? Was there any conversation about that between you and Mr. Hecker?
A. Well, I was deeply impressed by this information which I had received during the night, and therefore, when I submitted this file notice to Hecker in the morning--that is Hecker read it in my presence and then I told him, "Tell me, Mr. Hecker, is it true that the Under Secretary of State Klemm knows of this matter and approves it?"
Q. And what did he say, if you recall?
A. Hecker shrugged his shoulders. He looked at me and said, "Well, Hansen has..." Well, I can only give you the sense of what he says, that Hansen has fooled this Under-Secretary of State and he has got around him or he impressed him. I think he said, "Hansen has convinced the Under Secretary of State Klemm to approve it." Well, I think that is all Hecker said and I didn't ask him any further question either.
I asked him this question because I supposed that this whole story of the negotiations was known to him, and that I could obtain some sort of detailed information from him because I was rather worried by the matter, and that Hecker expressed himself in the manner I just now described to you.
Q. Yes. First you heard it from Hansen that Under Secretary of State Klemm had approved it; then you wanted to ask Mr. Hecker about it too; is that correct?
A. Yes; what I mean is, I asked General Public Prosecutor Hansen whether the Ministry or the Minister were familiar with this matter, and he answered this in the affirmative and told me that the Under Secretary of State Klemm knew about it, and I had put that down in my file note, and when I submitted the file note to Hecker, I asked him in a tone implying my doubts, I asked him whether this was correct as far as his knowledge was concerned.
Q. And then he gave you the answer that you just described; is that right?
A. Yes, he expressed himself in that sense.
Q. I will ask you furthermore, Dr. Eggensperger, do you know anything about the party relationships and the personal relationships between Hansen and Klemm?
A. I couldn't give you any details on that; I repeatedly noticed in official negotiations with the General Public Prosecutor Hansen that toward me, when I didn't do exactly what he wanted, he supported himself to a very large extent on the opinion of the Under Secretary of State, Klemm, and I saw that from that he had a certain support from Klemm, but these were matters which could not be doubted; and I only noticed that quite often toward me he referred to the support he had from the Under Secretary of State Klemm.
Q. Now, I think you stated -- I would like to ask you again: Will you fix the approximate time, the month and the year which you recall you had, you received this telephone conversation, and you had this conversation with Hecker?
If you did answer it, please answer it again; I have forgotten whether I asked it.
A. Well, of course, I can only judge that by the situation of the war. If I recall, that must have been during the last days of January or the first days of February, 1945.
MR. LaFOLLETTE: No further examination.
CROSS EXAMINATION BY DR. SCHILF: (Attorney for Defendants Mettgenberg and Klemm)
THE PRESIDENT: Proceed.
Q. Witness, the last question of the Prosecutor was when the telephone conversation took place, and you answered that it must have been towards the end of January or the beginning of February. On the strength of some memory which you might have, could you perhaps establish the time a little closer?
A. Well, I couldn't give you the exact day. As far as the situation of the war was concerned there were two different situations. As far as I am personally concerned, one morning Hecker came to see me and told me the enemy had come quite close and that was quite a surprise because I didn't know that part of the army had come so far already. Between this information and this phone call several days passed, I recall; I think the first occurrence was about at the 30th of January or somewhere around that day when Hecker told me of this night phone call; my personal experience was that it was a few days later.
Q. Well, you say a few days; could you tell us whether it was five, eight or ten days?
A. Well, I wouldn't say so much -- five or six days perhaps.
Q. You have already stated in what department of the Ministry of Justice you were working at that time.
A. Yes.
Q. In order to clarify this matter, it was in Department Five?
A. Yes.
Q. In this Department Five, at that time were you constantly on duty?
A. Yes, I was on duty in Berlin; the department itself had already been evacuated for a year and a half or two years; I myself was the liaison man between the department and the offices of the Wilhelmstrasse in Berlin. When the situation became critical, as far as evacuations were concerned, and that must have been in the fall of 1944 -- I couldn't give you any exact date -- then Hecker, who until that moment had always been in the field, at one of the places of evacuation, was recalled to Berlin in order to organize these evacuations and direct them from Berlin.
Q. Where was Department Five evacuated to, as a whole?
A. It was divided -- one part was in Siedenick, and the other in Wetzlar.
Q. Did you, as liaison man who remained at Berlin, in Department Five, report repeatedly to the defendant Klemm in his capacity as Under Secretary of State?
A. Yes.
Q. And what matters were you concerned with?
A. Again and again there were current matters which had to be discussed between the department and the Under Secretary of State who wanted some information, and some information I gave to him myself. In more complicated cases I asked the officials in charge to come in.
Q. In other words, you had a picture of the personality of Klemm himself. May I ask you to make a short interval between the question and your answer; this is necessary.
A. Yes.
Q. That apparently is the reason why you were surprised when Hansen, during the telephone call you referred to, explained the matter to you in a way that during the evacuation of Sonnenburg, Klemm was the man who originated it?
A. Yes, in a way I knew the Under Secretary of State Klemm, I was quite surprised.
Q. Do you mean to say you didn't believe he could do that?
A. Yes, I was quite surprised that the General Public Prosecutor Hansen referred to the name of the Under Secretary of State Klemm. If I hadn't been surprised, then I wouldn't have asked Hecker on the morning, Hecker who I thought was better informed; I would have seen quite clearly and I wouldn't have asked Hecker.
Q. In other words, you answered my question in the affirmative. From your personal knowledge, you wouldn't have thought that Klemm would approve such a matter?
A. No.
Q. On the other hand, did you have knowledge of the personality of Hansen in such a manner that there again you can have a personal insight in his character?
A. Well, I had repeated dealings with Hansen, who was General Public Prosecutor in Berlin, and I knew him quite well. I didn't like him because he had stressed severity in all his declarations and measures, and -- as I imagined it -- there was constantly great tension between us. I wouldn't quite say that, but I had only very formal official dealings with him.
Q. According to my information, Hansen was considered an especially brutal and a fanatic Nazi; can you confirm that?
MR. LaFOLLETTE: I object to this question, Your Honors, for the reason that it assumes existence of a fact and asks that the witness assume the existence of a fact about which we know nothing, of which there has been no testimony concerning this on direct examination of this witness. Certainly it is arguing, preliminary question to argue with the witness as to something about which can be brought into evidence at the proper time.
THE PRESIDENT: We sustain the objection.
BY DR. SCHILF:
Q. You have told us that you, yourself, had tensions in your relations with Hansen.
A. Yes. I only had official conversations with him, and I was very cautious in my dealings with him because of his domineering methods which were not very pleasant.
Q. Concerning this conversation, you told us already that you made a file note of the telephone conversation.
A. Yes, that was my duty.
Q. May I ask you what was the extent of this file note, as far as volume is concerned.
A. Well, I would say it was half a typewritten page.
Q. In this file note does the name of Klemm appear in connection with the fact that Hansen had referred to him as the originator?
A. Yes.
Q. Neither you or anybody you talked to, talked to Klemm himself, and discussed this matter with him?
A. I never discussed this matter with the Under Secretary of State Klemm, and how Mr. Hecker has taken action in that matter I don't know.
Q. During the two conversations you had, the first about the 30th of January, and the second about five or six days later, did Hecker then tell you anything of his having talked with Klemm?
A. During the first occurrence, Hecker only told me of a night telephone call with the Minister; nothing was said about the Under Secretary of State Klemm; the second conversation with Hecker concerning this matter took place at that morning and I already stated what Hecker answered to my urgent question whether this was quite correct, and he answered that question.
Q You already gave us a brief description of the contents of the telephone call with Hansen and, if I understand you correctly, you said that Hansen talked of an order issued by the Gauleiter and Reich Defense Commissioner. I think that was Sturz; and that he talked of this order. Is that right?
A Yes.
Q Did Hansen speak about an agreement? Did he use the word "agreement?"
A Concerning the exact wording, of course, I can not give you any information. Hansen, if I remember correctly - I mean, the matter is two years back, after all felt doubts arising out of my question, and he wanted to dissipate those doubts and to tell me that this matter had already been discussed and approved, and was all right.
Q Well, what then was the reason why Hansen -
A He reported to me the execution of a directive which had been issued.
Q Did Hansen tell you during the conversation that he, himself, asked if the General Public Prosecutor had reached an agreement with the Gauleiter Sturz?
A The word "agreement" would not be the right word if one speaks of conversations between Hansen and the Gauleiter. He told me himself that the Gauleiter and Reich Defense Counsel had ordered this measure to be carried out.
Q If I understand you correctly, that was what they called a report on the execution of a measure made by a General Public Prosecutor, who normally was under the authority of Department 5 of the Reich Ministry of Justice, a report on a directive by the Reich Defense Commissioner.
A If you ask me concerning the execution, it was the report of a General Public Prosecutor concerning an important occurrence in a penitentiary.
I would formulate it like that. It was his duty to report this matter.
Q And as you describe it to us the name of Klemm was only referred to by Hansen because, from your attitude during the conversation, he noticed that you had some doubts and didn't quite believe him.
A I certainly didn't ask him whether the Under Secretary of State had a report on that matter. I certainly asked him that the Minister knew about it, and therefore it was striking that he did not refer to the Minister himself but rather to Klemm.
Q On the strength of the circumstances of the conversation, as well as you, yourself were concerned, and Hansen was concerned, do you believe it possible that Hansen would refer to Klemm in contradiction with the truth in order to cover up for himself?
MR. LA FOLLETTE: I object, Your Honors, to that. I object for the reason that he has asked the witness to testify to some conclusion that might be in the mind of the man Hansen. That is not proper cross-examination.
THE PRESIDENT: He would have to be a mind-reader, it seems to me, to answer the question. I sustain the question.
BY DR. SCHILF:
Q A while ago, during the direct examination by the Prosecutor, you gave him an account of your telephone call with Hecker, where you doubted the correctness. You then told the Court that Hecker said something to the effect that Hansen probably had got Klemm around..." This remark of Hecker and that what you yourself seem to have felt during your conversation with Hansen, these circumstances gave you a reason to believe and to ask you that question yourself. Did you ask yourself whether Klemm really support Hecker -
INTERPRETER: Correction by the interpreter: Did you yourself -
MR. LA FOLLETTE: Your Honor, I object; this does not make -
THE PRESIDENT: Objection sustained.
MR. LA FOLLETTE: I object to the question but I certainly object to the form of the answer. I can't get anything out of this.
DR. SCHILF: "I asked the witness about the fact, the fact after his phone call with Hansen and his conversation with Hecker, he himself asked himself whether or not and this is the mere fact and not a question of appreciation
THR PRESIDENT: Objection to that question has been sustained.
BY DR. SCHILF:
Q Witness, I have to ask you another question. You were an official in the Department V, and therefore you were in constant contact with the field office. Did you have a report that the Sonnenberg penitentiary since approximately the turn of '44 to '45 occupied a special position on the strength of an order by Himmler. In order to refresh your memory, may I tell you the following. At that time Himmler was the commander of the socalled Weichsel Army (Wisla Army) and in his area of command to which Sonnenberg also belonged, he had issued an order for that area according to which, without his approval no civilian authority could execute evacuation measures. Furthermore, towards Thierack, he made a statement that the prisoners of the Sonnenberg penitentiary should be called upon to carry out fortification work, and placed under his immediate command.
Concerning this fact, the issuing of this order, and the fact that the Sonnenberg penitentiary at the latest, since the middle of January 1945, had a special position, do you know anything about that?
A No, not in that form.
Q Well, you say not in this form
A Well, the special position of the penitentiary was that it was built near to the operation area, but I don't know anything of an order by Himmler, of any order, which referred to that penitentiary, or to the location of the penitentiary.
Q Have you any knowledge of the fact that Thierack is alleged to have ordered that Sonnenberg penitentiary, if the enemy came near, should defend itself militarily?
A Yes, Herr Thierack had told me that a few days before, as a result of the night telephone calls. One morning Hecker told me that he had a very violent night because the penitentiary was threatened directly, that he had called up the Minister in his private apartment, and had asked him for directives on how to act. And the Minister had ordered that the penitentiary was to be defended.
Q Wasn't that something extraordinary that a penitentiary should defend itself militarily?
A Well, I couldn't quite see what it was, but as Hecker told me in a night telephone call, this was quite a mess in which such an order could have been given.
Q You, yourself, didn't ask yourself whether that might have been an error?
A No. Hecker told me that the military commanders had asked the Minister what was to be done in Sonnenberg after they had seen Russian armored cars near the penitentiary.
Q Witness, can you tell us what happened to the former General Public Prosecutor, Hansen, after that time when you talked to him?
A For the last time, I had a telephone conversation with Hansen on the twenty-second or twenty-third of April. From that time on I don't know. I never saw him again, and I never heard anything about him.
DR. SCHILF: May it please the Tribunal, no further questions.
THE PRESIDENT: Do any other of Defense Counsel desire to cross-examine this witness? Apparently not.
Is there any re-direct examination?
MR. LA FOLLETTE: There is no re-direct examination. I ask the witness to be excused.
THE PRESIDENT: The witness may be excused.
(Witness excused.)
What is the program of the Prosecution for the remainder of this day?
MR. LA FOLLETTE: We have documents, if Your Honors want them. We don't know how long the Tribunal desires to sit. We have some documents from supplemental Book I which has been distributed.
THE PRESIDENT: Well, the Tribunal desires to adjourn not later than four o'clock, so that we will recess at this time and take up such matters as you desire after the reconvening.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
MR. WOOLEYHAN: May it please the Court. The prosecution turns now to Supplementary Book 1. The first document in Supplementary Book 1 is NG-630. This is a letter bearing the letterhead of the Reich Minister of Justice dated Berlin, 20 July 1935. The letter constitutes a directive addressed to the Chief Public Prosecutors and Senior Public Prosecutors, ostensibly throughout the Reich. The subject of this directive is entitled "Struggle Against Political Catholicism". This directive bears the personal signature of the defendant Schlegelberger. The directive orders the addressees, namely, the prosecutors throughout the Reich, to assume as their duty the prosecution of Catholicism of a political nature, and from the second paragraph of this directive I would like to read the following:
"I decree it to be the duty of all prosecuting authorities to cooperate closely with the competent state police and administrative authorities in taking action - with the deliberation necessary to avoid mistakes but also with the severity necessitated by the dangerous nature against all manifestations of the efforts of political Catholicism to undermine the unity of the state."
Skipping to the last paragraph on the first page of this directive, Schlegelberger goes on to state:
"The cases must be investigated with the utmost rapidity, so that the punishment will follow the crime as quickly as possible. The penalties called for at the trials shall be such as the national sense of justice deems appropriate to the dangerous nature of these intrigues against the state.
"A report must be made to me in quintiplicate in all cases where proceedings of this type are initiated."
As I have said, this directive is personally signed by Schlegelberger.
The Prosecution offers as Exhibit No. 428, document NG-630.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: On page 3 of both the English and German books is found NG 728 is a secret order to all the State Ministries and Provinces, districts and areas, etc., through the Reich, dated 20 September 1938, and signed by Heinrich Himmler. This secret order begins on page 4 of both the English and German books, and is pointed toward the creation of certain so-called frontier districts in the event of Reich mobilization for defense, as it was called. This long, detailed order for mobilization and creation of frontier districts, signed by Himmler, is endorsed by the defendant Schlegelberger in a covering letter to the President of the Berlin Court of Appeal and the Presidents of the Courts of Appeal and Attorney General through the Reich, also circulated to the President of the Reich Supreme Court, the President of the People's Court, the Attorney General at the Reich Supreme Court and the People's Court.
The covering letter, signed "Dr. Schlegelberger," indicates a complete knowledge of the contents of the Himmler directive. The Himmler directive is self-explanatory, and without further reading the Prosecution offers document NG-728 as Exhibit 429.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: The Tribunal will remember that in the past the Prosecution has offered in evidence and has had admitted at least two documents of a similar nature, each of which were entitled "Fuehrer Information." Each of those documents was a single sheet printed in extraordinary size type and sent from the Reich Minister of Justice to Hitler personally for his information as to certain occurrences within the sphere of the Administration of Justice. If I remember correctly, one such Fuehrer Information was introduced during the examination of the witness Frau Solf. One other was introduced previously to that regarding another matter.
We find, in relation to those Fuehrer Informations, that on page 12 of the English book and on page 11 of the German, NG-759 is a memorandum explaining the institution of those Fuehrer Informations and the reason for creating such a bulletin.
This memorandum is dated Berlin, the 1st of May 1942, is signed by Dr. Schlegelberger, and in part it states the following:
"In order to safeguard the transmission of adequate responsible information concerning judicial matters to the Fuehrer"--obviously meaning Hitler--" even at such times when a verbal report is not possible, I introduce as from today a regular written report for the Fuehrer as a war-time measure.
"This report for the Fuehrer will give information in telegraphic style about important court judgments and day to day events, also plans and measures adopted by the Reich Minister of Justice."
Skipping a paragraph, Schlegelberger goes on to order:
"Unless immediate submission is necessary, I propose, for the present time, to have the report for the Fuehrer sent to him weekly. It will be dispatched every Friday."
Signed, "Dr. Schlegelberger."
The Prosecution offers Exhibit 430, document NG-759.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: On page 13 of the English book, which is page 12 of the German, is found NG-781. This appears to be a notice bearing the abbreviated letterhead of the Reich Ministry of Justice, dated Berlin, 8 February 1943. It is addressed to various Cabinet officials, including the Reich Minister of Interior, the Reich Minister of Finance, the Chief of the Nazi Party Chancellery, and the Reich Minister and Chief of the Chancellery of the Reich. It is a recommendation for the appointment of the Judge, Dr. Rothaug, to be Reich Public Prosecutor at the People's Court.
This notice dwells at some length upon the defendant Rothaug's qualifications for such a position and indicates in part the following:
"His" -- that is, Rothaug's -- "devotion to the ideology of National Socialism and his profound understanding for the need for the protection of national life render him particularly qualified for his appointment to the position of a Reich Public Prosecutor at the People's Court."
This notice is initialed by the Reich Minister of Justice Thierack.
The Prosecution offers as Exhibit 431, NG-781.
THE PRESIDENT: What was the exhibit number you mentioned?
MR. WOOLEYHAN: No. 431.
THE PRESIDENT: That is correct. The document will be received in evidence.
MR. WOOLEYHAN: On page 28 of the English book, and the German book likewise, is found NG-789. That is a single page document in the form of an office memorandum. It is dated Berlin, 17 December 1943, and has the typed name "Dr. Thierack." However, the memorandum is authenticated on its face in the upper right-hand corner by the initial of the defendant Klemm.
This memorandum is entitled "Internal Regulation", concerning "The consideration of Racial, Hereditary, and Criminal-Biological Viewpoints in Educational Questions." It concerns the training and education of judges, and indicates that a fundamental part of the training of judges must include the following: Racial, hereditary, and criminalbiological lines of thought, describing that as belonging to the entire new generation. Various other authenticating marks appear on the face of this memorandum.
The prosecution offers as Exhibit 432, document NG-789.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: On page 29 of the English book, which is page 27 of the German, is found NG-825. This document comprises notes on a conference between the defendant Rothenberger, and SS Sturmbannfuehrer of the SD Subsection in Hamburg, and an SS Oberscharfuehrer Judge of the Local Court. In this conference the defendant Rothenberger declares his willingness and desire to cooperate on judicial matters with the SD in Hamburg.
Without setting out the details, the Prosecution offers that document as Exhibit 432 -- or 433?
DR. WANDSCHNEIDER (Counsel for the defendant Rothenberger): This record of a discussion between Dr. Rothenberger and SS Sturmbannfuehrer Eckhardt has a date and a place- mark, but there is no signature of any kind, so that any evidence of the correct reporting of the conversation as the basis of this record is in no way given. For that reason I would like to have this document not considered as having probative value and not to have it admitted in evidence.
MR. WOOLEYHAN: Your Honor, as a captured document it is the best evidence the prosecution could procure. I might further add, Your Honor, that this being notes on a conference, the fact that there is no signature either typed or written at the end does not necessarily invalidate the fact, because conference notes frequently are found without any signature.
THE PRESIDENT: Being a captured document, we think it is admissible under the rules.
MR. WOOLEYHAN: On page 31 of the English book, which is page 29 of the German, is found NG-857, a single page document bearing the letterhead of the Reich Ministry of Justice, dated Berlin, 21 September 1943, and signed by Minister Thierack. In the lower left-hand corner certain handwritten notations state, "After dispatch of this memorandum it is to be given to the State Secretary for his information." There are certain illegible initials to the right of that directive. In view of the fact that this memorandum was sent by Thierack to the State Secretary, it becomes relevant to re-examine the date of the memorandum, which, being 29 September 1943, is within the tenture of office of the defendant Rothenberger.
This directive, although brief, directs close cooperation between the Ministry of Justice, the Reichsfuehrer SS - that is, Himmler - and the Reich Security Main Office, that is, the RSHA in Berlin. The language is interesting. Thierack says:
"I would appreciate it if, together with the Chief Public Prosecutor of the Reich, you would invite SS-Brigadefuehrer Ohlendorf and SS Brigadefuehrer Cerff to speak before the members of the Supreme Court and before the Public Prosecution of the Reich. This plan has been suggested by the Reichsfuehrer SS" - that is Himmler - "and I welcome it. The two Brigadefuehrer can both be reached in care of the RSHA in Berlin."
The prosecution offers as Exhibit 434 Document NG-857.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: On page 32 of the English book, which is page 30 of the German, we find a rather lengthy collection of notes on a conference held between the Nazi Party Chancery and the Ministry of Justice, on the 22nd of June, 1943, in Munich. Attending that conference, among others, were the defendant Klemm, who was then in his capacity as a member of the Party Chancery, and the defendant Alstoetter, of the Ministry of Justice. The subject of that conference was the importance of political opinions from the Nazi Party agencies as regards the results in judicial cases.
And the document, at some length, arrives at a favorable reception to those political opinions in judicial cases.
Without further reading, the Prosecution offers as Exhibit 435, document NG-889.
DR. SCHILF (Counsel for the defendant Klemm): May it please the Court, the photostat of this document does not show from which office this document originates. Also, it does not contain any handwritten signature. The name "Dr. Bergmann" is only typed on it. On the document there are no handwritten notes whatsoever; neither is there a stamp nor any other indication as to from which authority or from which office this document originates.
I would therefore like to ask that this document be accepted with the following limitation, namely, that it does not have full probative value but only a certain probative value exclusively as a captured document.
MR. WOOLEYHAN: Your Honor, the prosecution is forced to offer these conference notes in the condition in the condition in which they are found and as such they are the best evidence. I petition that this document as well as other conference notes that are captured documents be admitted with all the probative value the Court wished to find and with no limitation.
THE PRESIDENT: Of course, like all other exhibits the Court will not make any announcement as to how much probative value is given but we think this document is admissible under the rules of evidence as a captured document.
MR. WOOLEYHAN: On page 38 of the English book which is page 39 in the German there is found NG-901. This document is entitled "An Order for the Initiation of Proceedings" and is a collection of three similar orders on that subject, each signed by the defendant Schlegelberger wherein Schlegelberger demands the investigation of three notaries whom he believes should be dismissed for certain political reasons and without further reading except to note that the dates of these three orders range from May to December of 1938 and June of 1939. We offer the document NG-901 as Exhibit 436.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEHAN: On page 43 of the English book which is page 45 of the German is found NG 919. This is a lengthy report bearing the letterhead of the Reich Ministry of Justice, dated, Berlin, 7 April 1942. It bears certain authenticating initials, among those is that of the Cabinet Minister Lammers and concerns itself with a meeting by the representatives of the Reich Ministry of Justice, the Reich Chancellor, the Nazi Party Chancellory and certain officials from a Protectorate of Bohemia and Moravia whereat were discussed elaborate details and proposed simplifications of the administration of criminal law.