THE PRESIDENT: The Tribunal has already expressed its view on that matter several times
MR. KING: I wonder if I could ask the Court to turn to Exhibit 40, which is Joel's Document No. 66, to be found on page 66 in Document Book III. The Prosecution is somewhat embarrassed in objecting to the admission of this document because its content is such that we feel it probably adds little weight to the evidence. However, it is the type of a document, a letter, which contains no preamble.
THE PRESIDENT: Are you objecting to the letter which is the first page of Document 66?
MR. KING: I am objecting to the letter and to the affidavit which accompanies the letter. The affidavit has no preamble and is really a part of the letter. It is true that it has been certified by a notary public, but that is the only sense in which it complies with the rule. There are two or three documents in the group that are perhaps even in the same category. This is probably the worst.
THE PRESIDENT: You are objecting to the entire Document No. 66?
MR. KING: That is right.
DR. HAENSEL: May I say something about that. The document, as well as the letter, shows -- which is on page 66 -- that it was received by me in the same way that I reproduced it. It is a letter which especially due to its directness, in my Opinion, has a certain value, and I could not influence the formal writing up of it.
THE PRESIDENT: The objection is sustained. That is Exhibit 40.
MR. KING: In view of what we have already said, and the Court's response, we are not going to make any more objections. And, therefore, with the exception of 40 and those to be supplied, we have no objections, and I take it that they are to be admitted.
THE PRESIDENT: The exhibits, commencing with Exhibits, marked for identification, 12 and continuing through Exhibit 53, inclusive, are all received except Exhibit 40, and except those which the record shows have not yet been offered physically in the court, the last one of which is marked for identification Exhibit 53.
Have you any further testimony to offer in behalf of the defendant Joel?
DR. HAENSEL: I request to reserve the right to call lawyer Schulz from Ueberlingen at a later time. I had summoned him; he has a knee injury and so far he was unable to travel.
THE PRESIDENT: We will consider the matter when you are ready to present him.
DR. HAENSEL: In that case I have to submit no further evidence, with the reservation of that witness and the documents I still have to submit.
THE PRESIDENT: Gentlemen, bring your document books in the morning. We will recess until that time.
(The Tribunal adjourned until 7 August, 1947, at 0930 hours.)
Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 7 August 1947, 0930-160, 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 with the exception of defendants Engert and Barnickel who are absent due to illness.
THE PRESIDENT: The defendants have been temporarily excused. Let the notation be made. Are we ready to proceed with the introduction of document books this morning?
MR. LAFOLLETTE: If your Honors please, before Dr. Schilf begins I would like to take care of two matters in connection with the Prosecution's Exhibits. Exhibit 539, NG602, there has been distribution and delivery to the SecretaryGeneral. There simply has never been a formal offer. Right now I offer in evidence Prosecution's Exhibit 539.
THE PRESIDENT: Has the Tribunal received copies?
MR. LAFOLLETTE: Yes, your Honor.
THE SECRETARY-GENERAL: Yes, sir, they were distributed
THE PRESIDENT: I know the Secretary-General has received them. Have we received them here?
THE SECRETARY-GENERAL: Yes, sir.
THE PRESIDENT: The exhibit is received.
MR. LAFOLLETTE: The next Exhibit 536 which is NG-1966. That is in connection with the cross-examination of the defen dant Rothenberger.
Within just a minute I will have the exhibit and copies for distribution in the room. I would like to offer that exhibit in evidence.
THE PRESIDENT: The exhibit is received. What was the number, Mr. LaFollette, of the last exhibit you offered?
MR. LAFOLLETTE: Exhibit 536 which has been marked for identification as Document NG-1966. That consists, your Honor, of two letters, one from Adjutant Albrecht to the Defendant Rothenberger and one from the Defendant Rothenberger to Adjutant Albrecht.
DR. SCHILF: Schilf for the Defendant Klemm. May it please the Tribunal, I am submitting nine document books, but before I do so, I would like to state that the majority of the documents are concerned with the so-called general defense, Perhaps the Tribunal would be so kind to recall that the general defense, in its opening statement at the end submitted a list which names the subjects -- they amounted to 20 altogether -- which wore characterized as subjects of the general defense.
In compiling my document books I gave a special number to those documents which do not concern my client and I call them GV. That is supposed to mean General Defense Generalverteidigung - and I have added the number which can be seen from the supplement to the opening statement. Thus, on the first page of every document there is this mark which indicates which subject of the General Defense it concerns.
Document Book No. I is concerned with the constitutional laws. I have designated them as GV-1 in order to make that clear, and those laws which I shall now refer to, Professor Jahreis too, when he testified here, always referred to.
So that the Tribunal will be in a position to examine the testimony by Professor Jahreis by referring to the documents which he quoted.
Therefore, I am now submitting those following documents: No. 1 is the Law for Alleviating the Need of the People and the Reich, of the 24 March 1933. Professor Jahreis, at the time, stated that this was the beginning of a final dictatorial constitutional power since the so-called Praesidialkabinette had already created this. I am not going to read anything, your Honors. I am offering it as Exhibit 1. It is the frequently-mentioned law of the 24 March 1933.
THE PRESIDENT: May I ask to refresh my memory? You have not offered, in the name of Klemm, any previous exhibits, have you?
DR. SCHILF: So far I have not submitted any exhibits for Klemm. This, therefore, is No. 1.
The second law in this document book on Page 5 of the Document Book is the law regarding the Head of the State of the German Reich of the 1 August 1934. Here, too, I would like to ask the Tribunal to recall that Professor Jahreis spoke about the unification of the office of the Reich President and the Reich Chancellor. This law was promulgated shortly before the death of the then Reich President, von Hindenburg, by the Reich government, not by the Reichstag. I offer this law of the 1 August 1934 as Exhibit 2 Klemm.
THE PRESIDENT: Those exhibits are received.
DR. SCHILF: The next document is on Page 9 of the Document Book. It is again a law -- I beg your pardon. The next document is not a law but a decision by the Reich government to bring about a plebiscite of the 2 August 1934.
It has an immediate connection with the preceding document which now has been designated as Exhibit 2. It is the execution of this law of the Reich government about the plebiscite that was decided upon. To that extent again it is a question which Dr. Jahreis discussed here. This decision by the Reich government was published in the Reichsgesetzblatt - Reich Law Gazette - and, therefore, also had force of law. It is on Page 7 of the Document Book and I offer it as exhibit No. 3.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document is a law regarding the administration of the oath to civil servants and soldiers of the Wehrmacht of the 20th of August, 1943. It is on page 9 of the document book. This law was also introdiced in connection with the statement by Professor Johress. From the point of view of time, it is also connected with the two proceedings exhibits, namely, the law of the 1st of August, and the decision of the 2nd of August, regarding the plebiscite of the 19th of August. Immediately on the next day in the Reich Law Gazette, this law about the administration of the oath appeared because Hitler attached importance to having all soldiers and civil servants take the oath of loyalty to him.
May it please the Tribunal, may I make a remark? On the Schlegelberger document Book #1, on page 39, there is printed, and I believe accepted as an exhibit, the result of the plebiscite which was held due to a decision of the Reich Government in August, 1934, and the exact figures that resulted from the plebiscite are given in this exhibit.
I offer this as exhibit 4, Your Honors.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document is in Document Book 11. It is a...
THE PRESIDENT: (Interrupting): You mean, it is page 11, Document Book 1? Page 11?
DR. SCHILF: On page 11 of the document book. A decree of the Fuehrer regarding the formation of a Ministerial Council for the Defense of the Reich. Here I did not only submit and I am not only introducing the law as it is printed in the Reich Law Gazette, but I considered it appropriate also to introduce a brief commentary, and I may call it an official commentary. The commentary is from a book which is very well known in Germany - "Pfundtner-Neubert". Pfundtner-Neubert on page 11 it says, at the beginning of the document.
This book is a collection of the entire Reich Legislation since 1933. The commentaries were, as a rule, made by the referents of the ministries. Therefore, it was ascribed as a ministerial commentary. This commentary facilitates the understanding of this law. May I call the attention of the Tribunal to the word "introduction". In this introduction, in a few words, is summarized the historical development about which Professor Jahrreis here made very illuminating, statements. The law is of the 30th of August, 1939, one day before the outbreak of the war, and contains the possibility to simplify the legislation even more. Until 1933, on principle, the Reichstag was the legislative organ and, through the so-called enabling acts, the Reich Government the bearer of the legislative power and through this law of the 30th of August, 1939, a committee of the Reich Government was appointed and this was given the name of the Ministerial Council for the defense of the Reich. This counsel had the authority to issue so-called decrees that had the force of law.
May I also point out to the Tribunal, Article 1, Paragraph 2, where the individual members of the Ministerial Council for the Defense of the Reich are listed? The most important for us here in this trial, for the entire administration of Justice, is the official named in third place who had the title of plenipotentiary general for the Reich Administration.
From the law and from the commentary it can be seen what extensive consequences later on this simplified method of legislation had. It is noticeable that the Reich Minister of Justice was not named among the persons who I just named. Thus, he did not belong to the closer Ministerial Council for the Defense of the Reich.
I offer this document as Exhibit 5.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document is again a decree from the Reich Law Gazette. Here, this is the first document which concerns my client Klemm, but not only him, but it is also important for the development of the administration of justice because, for the first time, the Reich Defense Commissar is mentioned here.
The Reich Defense Commissar played a role in the examination of Klemm and in the entire case because, in the Sonnenburg Case, the Reich Defense Commissar played a special role. The excerpts which I quote from the law of 1 September 1939 show clearly what significant functions this Reich Defense Commissar had.
May I direct the attention of the Tribunal to the fact that this law was promulgated after the previous decree of Exhibit 5 of the 30th of August, 1939?
To that extent, it is a supplement to the law of the 30th of August, 1939. I do not want to recite anything else from this law, it speaks for itself, and I offer it as Exhibit #6.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The law is on page 15 or 16 of the document book. It is signed by Goering and by Dr. Lammers. Dr. Lammers was the witness who testified here.
The next document in Document Book 1, page 17 to 18, is, I would like to say, a combination of the two proceeding laws, namely the law about the appointment of a Ministerial Council, and secondly, about the appointment of Reich Defense Commissars, because here we are concerned about the order of the Ministerial Council for the Defense of the Reich for the execution of the decree for the appointment of Reich Defense Commissars. The Ministerial Council here had taken over the more detailed regulation for the Reich Defense Commissar. The law is dated 22 September 1939. Significant with this law again is the fact that the administration of Justice, in the committees which were assigned to the Reich Defense Commissar, was not represented at all.
May I ask the Tribunal to direct its attention to I, the first article of the law, and the second paragraph which begins with the words: "To the Defense Committee beong?" I refrain from reading the next words. In any case, the Reich Administration of Justice is lacking. No Reich Minister of Justice or any other person from the Ministry of Justice is mentioned. This document is supposed to be evidence to the affect that the administration of justice had no part in the practical administration within the meaning of the law in which it should have played a role normally in a state.
I do not have to say anything else about this law, and offer it as Exhibit #7, Klemm.
THE PRESIDENT: To exhibit is received.
DR. SCHILF: The next document is on page 19 to 24 of the document book. It is a further decree regarding the Reich Defense Commissar. This one of the year 1942. Here too I considered it appropriate to submit as a document not only the bare law, but again to also reprint an introduction from the commentary from the book Pfundtner-Neuberg which I have already mentioned. This is a commentary. This commentary is at the beginning of my document and I would like to ask the Tribunal to look at page 20 and direct its attention to the new regulations on that page. These regulations, which were introduced only as late as 1942, show the districts of the Reich Defense Commissar were delineated. It says there that all of these districts will be made the same as the Gaus of the Party, that is, the Gaus of the NSDAP. And now, I would like to quote a sentence:
"Accordingly, the Gauleiters, as carriers of political sovreignty, were named in each case, as Reich Defense Commissars."
In the next paragraph the task of the Reich Defense Commissar is explained and what the witness Dr. Lammers has already informed the Tribunal about is laid down here, that the Reich Defense Commissar, in the actual task of administration, after 1942 had the decisive word to say and had to be asked on practically all questions.
During the course of the war, his authority increased constantly. The necessity of the conduct of the war vecame more important and the Reich Defense Commissar was the liaison man between the Wohrmacht and the principal administration of the state.
I would like to mention one thing from this decree and that is sub-section 8. Sub-section 8 is on page 22 of the document book Corresponding to the first law which I have introduced, regarding the Reich Defense Commissar, this is now Klemm Exhibit #7. The so-called Reich Defense Committee was reorganized. The Reich Defense Committee was decreased. Less persons were admitted into it and here too is lacking any representative of the administration of justice. Sub-section 8, Paragraph 2, says:
"The following are members of the Defense Committee: The Reichsstatthalter, the Gauleiter ...." According to what I have already statedm that was the Reich Commissar himself, as a rule, and if that was not the case, the Gauleiter was included in the committee in any case.
The next person is the provincial president, that is the administrative authority of the Province in Prussia. Then dome the Minister Presidents; they are the chiefs of the administration of the German Laender. May I again point out to the Tribunal that they can still see them on the chart, and may I remind them what Jahrreis stated about this on the chart which is till here. We can see the provinces of the land Prussia, laender. Then a number of other people are enumerated, but in any case in the districts or provinces or laender there is not mentioned a president of the district court of appeal or a general public prosecutor. Both of these types of people were excluded from this committee of the Reich Defense Committe -- to work on it.
I offer this decree, with the explanation, as Exhibit, Klemm No. 8 -- with the commentaries as Exhibit No. 8.
THE PRESIDENT: The exhibit is received as No. 8.
DR. SCHILF: I now come to document book No. 11. First of all, and only for judicial notice, I have cited six quotations from the opinion of the IMT. I have combined these in one document book. I have called it the subject of the general defense No. 4. I believe that I have found out that in the English document book this is not contained. At least no in the copy which I received last night. If that should not have been corrected, may I point out I have called it No. 9 -- Exhibit No. 9, and it begins on page it and ends on page 9. In the German document book it is contained.
THE PRESIDENT: It is not in my book.
MR. LAFOLLETTE: It is not in mine either.
THE PRESIDENT: However you needn't be disturbed if it is a copy from the IMT judgment, because our rules require us to take notice of that judgment, and we will do so.
MR. LAFOLLETTE:If your Honor please, the Prosecution would like to be advised which part the defense considers significant; while I shall raise no objections now, I would like some arrangement to supplying me with a copy of this.
I have no objection to it being introduced.
DR. SCHILF: In the index I have listed the six quotations. I have listed the page numbers of the six quotations, but I would like to say the following: I have not quoted according to the transcript of the IMT, but I have quoted from the official report or record which was published recently by the editor of the record", of Volume 1, which was published here in the court house by an official commission. As far as I have been informed, the page of the English text are the same as those of the German text. However, I am not certain about this. There for, only very briefly want to state the individual subjects which I have quoted here. On page 198 of this newly published official record the Hohenstein case is mentioned. The Hohenstein case is very significant here. I only want to submit for judicial notice of the Tribunal what the IMT decided about this case. The second quotation I consider important because it concerns the subject which Professor Jahreis discussed here. The IMT in regard to the subject which Dr. Jahreis also discussed held that the so-called Fuehrer Decree was a law in the constitutional structure of the Third Reich -- a law that was binding on all. The International Tribunal did not hand down an express decision about this, but limited its decision to the Hitler decree. As far as the Defense is concerned, we here have made efforts to work out a distinction between the order and the Fuehrer decree as a legislative act, and I do not want to argue about it. I only want to argue about it. I only want to say that Professor Jahreis treated that subject very extensively.
The third quotation, on page 293, concerns the question which is important for our case--as to whether the administration of justice participated in the illegal lynchings of shot-down or parachuted allied fliers.
The IMT at the time decided that only party offices could have been responsible for this. It said that a program had been made up by Bormann, had been propagandized by Goebbels, had been promoted by Goebbels, and that as a consequence of this program by Bormann, a number of lynchings had occured, but it did not look as though this had happened all over Germany. Nevertheless the existance of this circular memorandum by Bormann proves that the corps of political leaders is responsible. As defense counsel of Klemm, I attach particular importance to that indication by the International Military Tribunal because there they did not establish that the agencies of the Administration of Justice had anything to do with these matters.
The next quotation is on page 318 of the office record. It concerns the sentence gainst Hess. It is important for my client Klemm because the party chancellery played a part here.
The next quotation, page 380 and the following pages, concerns the opinion of the sentence of the IMT against Fritsche. Fritsche was examined here as a witness for the general defense, especially also in regard to the question of lynching of allied fliers. To inform the Tribunal about the person of Fritsche, I introduced this entire paragraph in my document book.
The last quotation concerns Bormann, and it is laid down that the responsibility for the lynching of allied fliers was Bormann's, who, as Reichsleiter, had issued this well known memorandum.
May it please the Tribunal, these are the passages which I wanted to introduce for judicial notice from the IMT judgment. I offer this compilation as Exhibit No. 9
THE PRESIDENT: The Tribunal takes judicial notice of the IMT and of these portions of it.
MR. LAFOLLETTE: I simply want to reiterate my previous remark that I hope in some manner that counsel will be supplied with these in English so that I may have an accurate quotation of them.
DR. SCHILF: At the moment I cannot find out what was the cause for the fact that pages 1 to 9 are missing in the English document books. May I express my astonishment at the situation. After all the judgment has been officially translated. Perhaps the translators arc looking for the official translation and couldn't find it.
DR. SCHILF: The next document, which I intend to introduce, is an excerpt from a collection of documents which was published in 1940. This collection of documents is called "the Documents of German Politics". Page 10 of my document book 2 contains the complete titles from that. The Tribunal can see that it is a semi-official collection of documents. This excerpt concerns the question as to how the German people at the time were told about the constitutional changes in Czecho Slovakia. I here would also like to refer to the witness Fritsche. In order to underline his testimony I have included here the agreement of 15 March 1939 between the Fuehrer and the president of Czecho Slovakia, Dr. Hacha. This document appeared everywhere as the basis for the establishment of the so-called Protectorate.
In this excerpt and this document, it is interesting to note that Dr. Hacha, as well as the then Czecho-Slovakian foreign minister Dr. Chvalkovsky, on the basis of this agreement treaty of 15 March 1939 made a public statement and that was an affirmative statement. I also took these affirmative statements from the Documents of German Politics. These statements are in the appendix to my documents.
The second part of this document begins on page 12. I might say that the collection of documents contains a detailed description of how the two representatives of their states, Hitler for Germany and Hacha for Czecho-Slovakia, made a cordial agreement pact and proceeded. The second part of this document, which also plays an important part as to how the whole affair was described to the German people and what the German people knew about the establishment of the so-called Protectorate at the time, is a declaration by von Neurath, who was appointed Reich-Protector. Neurath is well known. He was before the I.M.T. as a defendant. At that time, immediately after the agreement was concluded, in the well known journal "the Europaeische Revue", von Neurath published an article 1939. The Tribunal will find the enclosure on page 12 of the document and that contains also a further statement by Dr. Hacha about the newly established relationship between the German Reich and Bohemia and Moravia.
These statements by von Neurath are not given in their entirety, but they are significant of what was said also from that quarter, not only by Hitler, but by the foreign minister of the Reich about the aims of the German policy and above all that it was said that the Czechs not only in regard to nationality, but in regard to culture would be granted complete autonomy. These two important statements, the agreement and Neurath's declaration formed the basis of the information which was given to the German people about that relationship.
May I ask the Tribunal to accept this document as Exhibit 10?
THE PRESIDENT: Exhibit what?
DR. SCHILF: Exhibit 10.
THE PRESIDENT: It is received.
DR. SCHILF: On page 14 of the document bock II through 15 there is a decree regarding the Eastern Territories, that is the territory which was incorporated into the German Reich after the campaign in Poland. That is a supplement of the law that was introduced already in the Schlegelberger document book. I will refrain from explaining this law in detail, but it concerns the position of the Reichsstatthalter (Reich Governor) in the Eastern territory.
I offer this document as Exhibit 11.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document on page 16 of the document book, page 16 to 21, concerns the administration of penal law against the Poles and Jews in the incorporated Eastern territory. That too is a supplement to the documents submitted by the Prosecution as well as the Defense, regarding the legal position of the Jews and Poles in the so-called Eastern Territories. These are the decrees of it September 1941. Here again I introduce parts of the Ministerial commentary from the Pfundtner-Neubert book, which elucidates the law.
I think it better than the plain reporting the law.
I offer this document as Exhibit 12.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: In connection with the document, which I have just introduced, I introduce the next one which is the executive order regarding Poland, that is to say the regulation for the execution of penalty. Here is explained what many witnesses have already stated that the prison term for Poles according to this decree did not longer mean a penitentiary, but a penal labor camp. This is explained in a socalled general decree by the Reich Minister of Justice of 7 January 1942. The document speaks for itself and I do not have to speak more about it.
I offer this document as Exhibit 13.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document is an affidavit, which concerns not only my client Dr. Klemm, but the number which are listed on the top of page 22, that is to say the general Defense. It also concerns the same subject 3 - subject 3 was designated in the opening statement as the relationship of the Administration of Justice to be police. Dr. Kuehn, formerly working in the Reich Ministry of Justice in department 4 relates an incident in which a man was denounced in Berlin because he had alleged - and that was supposed to have happened in 1942 or 1943 - that the Jews were being killed by gas in the East. The Administration of Justice went into this matter because the man was upposed to be prosecuted. It was very important for the Administration of Justice whether his allegation was correct. The affiant Dr. Kuehn states here that at the time he himself reported the case to Klemm, my present client, he then describes how Klemm reacted upon this report, and finally he states that he addressed an inquiry to the official office which had to know about that, which was the Gestapo Office. That was an inquiry of one Ministry to another govern ment office, and that the State Police Office at that time rejected the allegation as being absolutely untrue.
This is one of many exhibits which have been submitted which show that the Gestapo if any other Government agency wanted to know anything made an official denial and that at that time the people in Germany still believed that official information was true.
May I in this connection also refer to the Fritsche testimony and I offer this affidavit as Exhibit 14.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document on page 24 in the document book is in close connection with the proceeding document. It is a secret memorandum by the R.S.H.A. to the office of the Gestapo in Duesseldorf of 21 July 1943. The document was submitted to the I.M.T. and bore at that time the No. 1063-PS. The document speaks for itself. The Main Office of the Security Police at that time directed all Gestapo offices not to admit anyone into the labor camps, especially no representatives of the press or of the Labor Front. The original of this document has been given to the General Secretary of the I.M.T.
I have a certified copy here and offer this document as Exhibit No. 15.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next is a police directive and the interesting thing about this is the date. On the 19 June 1944 there appeared in the Reich Law Gazette a police directive. This police directive was signed by Himmler and contained a detailed regulation to the effect that Eastern male and female labors - those as a rule were Poles and Ukranians who were from the Eastern parts of Europe, working in Germany were supposed to be paid. This directive states that the Eastern workers had proved by their attitude and efforts and their behavior that they wanted to cooperate against the Jewish-Bolshewist world danger. And they received a kind of medal for merits as an external sign of acknowledgment.