A: Oh, the Tribunal hasn't got this?
Q: No, it hasn't been translated.
A: Well, this is the correspondence between the Ministry of the Interior, the MinisterPresident, and the Minister of Justice. The files further show that Hitler himself was also involved.
Q: May I interrupt you, Dr. Barnickel? Would you please tell the Tribunal, would you read to them the pages that show that Hitler himself played a part?
A: Well, I will have to look for it, first.
THE PRESIDENT: Would the Prosecutor indicate, without approaching the podium, whether we are to have this exhibit before us at a later time?
MISS ARBUTHNOT: We will have it processed.
THE PRESIDENT: All right. The answer was in the affirmative.
BY DR. TIPP:
Q: Witness, you have just told us that the files show that Hitler himself was to deal with the matter, and I asked you to tell the Tribunal briefly, for the sake of clarity, from what passages of the files one can see that and what other high functionaries of the Party dealt with the matter.
A: Well, according to the German text, this is a report by the Ministry of Justice dated 6 December, 1933, and the passage appears on Page 8 of the report. Besides Himmler, Reichminister Roehm, Chief of Staff at the time, also dealt with the matter. And as I have pointed out before, the Ministerpresident also had something to do with it.
Q: May I just interrupt you briefly? Does the letter which you have just mentioned which contains the names of Himmler and Roehm indicate that the matter was reported on to Hitler?
A: I will quote the last paragraph of the report, and I quote: "I shall ask the Reichsfuehrer SS to order that the investigating authorities will not be allowed to enter the camp and that for the time being it will not be permitted to interrogate inmates of the camp. Tomorrow I shall discuss the matter with the Fuehrer and shall ask him to give a decision."
Q: Witness so as to avoid all misunderstanding, you used the word "I". I think you better tell us who that "I" was, otherwise the impression might be that it was you who conducted that conversation.
A: No, I never had any contact with the higher-ups. As I pointed, out before, this is a report from the Ministry of Justice which is signed Dr. Walter Stepp.
Q: I beg you pardon. Stepp? Did he say that he was going to have that camp licked, and did he say that he was going to see the Fuehrer? I think Stepp only reports about some conversation where he was present and about which he heard. This mysterious person "I" -- who is it? Is it Roehm, is it Frank, or who is it?
A: What I read out I read only for the purpose of making it easier for the Tribunal to identify the document. But if you think it necessary, I shall tell you more details.
THE PRESIDENT: If the exhibit is to be introduced in evidence, which we have been told it will be, we can determine who the mysterious "I" is for ourselves.
THE WITNESS: Well, I just want to add that naturally the General Public Prosecutor at the District Court of Appeals also dealt with the matter. According to the files, it seems likely that on the highest level it was decided not to institute proceedings.
Now that I have read these files I believe I can just remember vaguely that I discussed this matter with the General Public Prosecutor; and there is no doubt that I received instructions from him, instructions which he for his part had received from the Ministry of Justice to discontinue proceedings. And in view of the facts as they are, I have no doubts that the text of the order to discontinue proceedings was laid down. That is to say, I was told how to word it. I also think it possible that at the time I did not have all the files, but I believe that some of the files may have been put with the Siegfried files at the Ministry. I think that possibly I myself only had comparatively insignificant files which did not give the complete picture of the matter. As I pointed out this morning, I know that a number of important files had disappeared, but naturally I am not in a position to make reliable statements.
THE PRESIDENT: The witness' testimony indicates that he is just speculating on what he may or may not have seen. I think he has covered it sufficiently.
THE WITNESS: Yes.
BY DR. TIPP:
Q. I believe, Witness, the most important point is that according to your recollection you received instructions to suspend proceedings from ahigher authority, that is to say, from the General Public Prosecutor, who had received them from the Ministry. I believe that is sufficient.
A. There cannot be the slightest doubt about that.
Q. Witness, my attention has been drawn to the fact that in this connection the words "Ministry of Justice " might easily be interpreted as "Reich Ministry of Justice." To avoid misunderstanding in the transcript will you tell us please what Ministry of Justice this was?
A. Well, I was referring to the time before the Administration of Justice had been centralized. I was referring to the time when Dr. Hans Frank was still the Minister of Justice in Bavaria.
DR. TIPP: Your Honor, I have no further questions, but I should like to point out that I have offered all documents from my Document Book I except for the last two remaining ones, and I should be glad if you would allow me to offer those now, in order to conclude Document Book I.
THE PRESIDENT: I haven't them before me, but you may make the offer and we will make a notation. Before you do that, it is important that we should not become confused as to what document the witness has been testifying during the last few minutes. May I suggest that whatever instrument it is that is in the possession of the witness be marked for identification with an exhibit number and that when this exhibit is processed that exhibit number be employed. What is the nature of instrument that the witness has?
Is that the original in German?
DR. TIPP: Just a second, Your Honor. Your Honor, the document which I have just discussed with the witness is the document which was mentioned this morning from the IMT.
THE PRESIDENT: Yes.
DR. TIPP: It has the number D926. According to my information it was introduced as Exhibit GB-- which stands for Great Britain --568. The other documents which I have discussed with the witness were submitted by the Prosecution this morning.
THE PRESIDENT: Will this D 926 be marked for identification our exhibit No. 565 and then put that on the exhibit when it is offered. That is for identification only. Thank you.
DR. TIPP: May the witness leave the witness stand, Your Honor.
THE PRESIDENT: Yes.
DR. TIPP: I shall now offer from Barnickel Document Book I Page 74 Barnickel Document 22, which is an affidavit by the physician Dr. Hans Bachhammar of Munich, dated 4 February 1947 and the exhibit number is 22.
THE PRESIDENT: The exhibit is received.
DR. TIPP: The last document from this document book which I offer is Barnickel document No. 23 on Page 76 of the document book. It is an affidavit by Ministerial Counsellor von Perisnow, dated 16 July 1947. The exhibit number is 23.
THE PRESIDENT: The exhibit is received.
DR. TIPP: Your Honor, I reserve the right to present my Document Book 2 as soon as the translations is completed, and I would ask you to allow me later to introduce two or three documents which I have just received. Apart from that I have finished for the moment the submission of evidence in the case of Dr. Barnickel.
THE PRESIDENT: Very well. We will proceed with document books.
DR. GRUBE (for the defendant Lautz) : To begin with, I offer the documents from my Document Book 4-A, which I wish to offer is Document 57 on Page 1. This is an affidavit by Gustav Ullrich , director of a local court.
It refers to the political attitude of the defendant Lautz during the time he was at Neuwied as public prosecutor. I offer this document as Exhibit 216.
THE PRESIDENT: Just a moment.
MISS ARBUTHNOT: I understand that the certification of the signature of this document does not conform to the rules laid down. Under the circumstances the Prosecution would object to it.
THE PRESIDENT: I don't find it.
DR. GRUBE: Document Book 4-A, Page 1. According to my opinion it is entirely in accordance with the rulings that have been made about affidavits.
THE PRESIDENT: It is Page 4, not Page 1.
DR. GRUBE: May I say that document 60, our pages 2 to 4, is an affidavit by Steinecker. That document is superfluous, as Steinecker has been examined in person.
THE PRESIDENT: Just a minute. You are offering an affidavit by Richter?
DR. GRUBE: No, by Ullrich , director of a local court. On Page 1 of the Document Book.
THE PRESIDENT: I say it is on Page 4 of our document book.
DR. GRUBE: I beg your pardon. Apparently that is an error which occurred in the translation department. In my document book it is on Page 1.
THE PRESIDENT: Has your document book been numbered consecutively from the first page throughout to the end of the book?
DR. GRUBE: Yes.
THE PRESIDENT: Is that numbered at the bottom of the page?
DR. GRUBE: Yes, at the bottom right.
THE PRESIDENT: Page 4.
DR. GRUBE: Apparently that is a misunderstanding that occurred in the translation department. The next document I offer is Document 51 by Werner von Haake. In my document book it is on pages 5 through 8. The striking thing in this affidavit is a sentence which I am going to quote. It is on Page 2 of this affidavit.
THE PRESIDENT: Again you are in error. Your index shows it on Page 2 and the affidavit appears on Page 6.
DR. GRUBE: Your Honor, will you forgive me, please, because apparently there is a mispagination, but that isn't my mistake. That happened in the translation department. The pagination is correct in my book.
THE PRESIDENT: I think we will have to consider it the responsibility of counsel to see that the books which are presented to the Court are correct, no matter whose mistake it may be. Now, what was your document number of the affidavit of Werner von Haake?
DR. GRUBE: This document has the Lautz document number 51 and the exhibit number will be 217.
THE PRESIDENT: The Lautz document number doesn't appear on the affidavit, although it does appear in the index.
DR. GRUBE: From this affidavit on the second page of the document, if the Tribunal will permit me, I shall quote this sentence. I quote: "He as a department chief was a kind but strict superior to us who in accordance with his own very conscientious and correct and of course strictly legal attitude demanded from his subordinates an irreproachable and highly correct performance of duty strictly within the limits of the law and a highly idealistic conception of our profession as public prosecutors."
Further on Haake says that Lautz was always moderate and that in writing the indictments he desired that all severity towards the defendant and also all coloring be avoided.
Haake also pointed out that Lautz, on account of that attidue of his, possessed the particular confidence of Guertner. I offer this document as Exhibit 217.
THE PRESIDENT: The exhibit is received. Counsel didn't wait for us to rule upon the first exhibit, which is Exhibit 216. The exhibit is received. It appears to be substantially in compliance with the requirement.
DR. GRUBE: The next document is an affidavit by the former Judge General of the Judicial Affairs Division. In my document book, it is on pages 9 to 12; in the English volume, it is on page 7.
THE PRESIDENT: Just a minute. This is so badly confused, that you will have to give the Tribunal time to straighten it out. That is your document 115?
DR. GRUBE: Yes, that is my document 115.
THE PRESIDENT: The exhibit is received.
DR. GRUBE: May I point out that in this document, Thissen states that Lautz was anything but a particularly severe penalty. After this Exhibit 218, there comes an affidavit by Brueninger, which has my document number 158. In my book it is on pages 13 through 17. In the English text, it is on page 9.
THE PRESIDENT: The pagination is wrong in every instance. That should be on Page 9 in our book. The exhibit is received.
DR. GRUBE: May I say something to throw light on the responsibility of the defense counsel in connection with this matter? We hand four copies to the Defense Center, and we do not see the document books again until they are handed here to the Secretary-General. We have no influence whatsoever an the work that is done in the Translation Department, and just as the Tribunal itself, we are faced with the fait accompli.
THE PRESIDENT: I actually understand that you don't control those departments and the errors that are there, but I would suggest to you that you take a look at your books when you have an opportunity and send them back to the people who have made the errors, when you find the errors. This is a very slow procedure. We are not trying to blame anyone; we are simply stating that the books are all incorrectly paged. If you go slow, we will try to work it out. The next one, 219 is receive". That is document 158.
DR. GRUBE: The next document is the affidavit Weiss, which has my document number 132. In my document book it is on pages 18 to 22. In the English text, it is on page 11.
THE PRESIDENT: Received.
DR. GRUBE: I think that this document is of importance because it mentions the constant friction which Lautz had at Karlsruhe with the Gestapo. I offer this document as Exhibit 220.
As Exhibit 221, I offer an affidavit by Dr. Rudolf Lehmann, who has been examined here on the witness stand. This is Lautz Document 124, Page 13. Under Roman numeral III in this affidavit, Lehmann described how Lautz' appointment to be Chief Public Prosecutor came about. Guertner, at the suggestion of Lehmann, appointed Lautz as he felt particular confidence in him, and as he wanted to prevent the General Public Prosecutor Wagner of Stuttgart, who had been the tool of his Gauleiter, from becoming Chief Reich Prosecutor. Furthermore, this affidavit shows that Lautz repeatedly mentioned to Dr. Sack and Lehmann the struggles in which he was involved with Thierack.
Lehmann also mentions the Elias case and confirms these statements which Dr. Schlegelberger made here on the witness stand to the effect that the defendant Lautz wanted to resign over the Elias case. I offer this document as Exhibit 221.
THE PRESIDENT: 221, isn't it?
DR. GRUBE: 221.
THE PRESIDENT: What is the relation of this affidavit in point of time to the time when Lehmann was examined here as a witness? Did you have an opportunity to examine him then?
DR. GRUBE: Your Honor, at that time we were not allowed to examine Lehmann as our own witness. Lehmann was here as a witness for cross examination.
THE PRESIDENT: The exhibit is received.
DR. GRUBE: As Exhibit 222, I offer now Document 248, which is on Pages 28, 29, on my document book. This is an extract from the Reich Law Gazette, 1942. It is an extract from the decree on the further simplification of the administration of penal law, 13 August 1942: Page 15 in the English book. By way of explanation, I should like to point out that an my Exhibit 23, which deals with the competency decree of the year 1940, I showed that in articles 34 to 37 of that competency decree, it was laid down that the Chief Reich Prosecutor with the Reich Supreme Court an not the Chief Reich Prosecutor with the People's Court was competent to make a nullity plea. The document, 248, before us, contains an amendment of those provisions concerning the nullity plea, but it does not mean that the extension brought about by this provision authorized the Chief Reich Prosecutor of the People's Court to make the nullity plea.
That is evident from the contents of the document. I offer this document as Exhibit 222.
THE PRESIDENT: The exhibit is received, and we observe that some of these exhibits, including this one, commence in the middle of a page, which is contrary to the practice we have had in all other document books. That is very inconvenient for us. We hope that the other document books will not start an exhibit in the middle of a page. Exhibit 222 is received.
DR. GRUBE: Document 269 on Pages 30 and 31 of my document book contains extracts from a general order of the Ministry of Justice, dated the 30 of October 1942. It also refers to the extension of the opportunities to make the nullity plea. This order by the Ministry of Justice shows clearly that now, as before, the nullity plea can only be made in the case of decisions or judgments passed by the local court judge, or in the penal chamber by the Special Court. I offer this document as Exhibit 225.
THE PRESIDENT: It's received.
DR. GRUBE: Document 26, Page 32, gives an extract from the German Criminal Law by Grau-Krug-Rietzsch. This document in its last sentence shows clearly that the Chief Reich Public Prosecutor at the People's Court was never able to make the nullity plea. I offer this as Exhibit 224.
THE PRESIDENT: The exhibit is received.
DR. GRUBE: The next document is 260, the exhibit number will be 225. This is an extract from an order by the Ministry of Justice. It deals with the question of the competency within the prosecution office. I offer this document as Exhibit 225.
THE PRESIDENT: That appears at the middle of Page 17?
DR. GRUBE: In my book, it's on pages 33 and 34. It gives Article 13 of the Third General Order of the Ministry of Justice of the 18 December 1934.
THE PRESIDENT: The exhibit 225 is received.
DR. GRUBE: Document 126, Pages 35 through 44 in my document book, contains extracts from the ordinances by the inter-Allied Rhineland Commission during the time when the Rhineland was occupied after the First World War. May I remind you that the defendant Lautz, in the witness stand, mentioned those ordinances, and in particular, referred to the note by the Four Allied Governments of the 29 July 1919. That note appears on Page 5 of my document and I quote:
"The German courts in cases where they have to pass judgment will apply the German penal law; but in accordance with the principles of international law, military courts of the Allied powers can apply only those laws which were issued in their homelands."
From the note of the Four Allied Governments of the 29 July 1919. I offer this Document as Exhibit 226.
THE PRESIDENT: It's received.
DR. GRUBE: Document 540, pages 45 through 48 in my book, have comparative accounts of German and foreign penal law, which at the suggestion of the Reich Justice Office in 1906 was published as a preliminary to the reform of German penal law.
The document shows that it was found in the whole of modern foreign legislation in the case of high treason offenses that no difference was made whether high treason had been committed by a national of the country or by a foreigner, and whether it had been committed inside that country or abroad. The commissions found that modern foreign and German law had abandoned the opinion, according to which the essence of high treason is that a relationship of loyalty has been violated. On page 2 of the same document, it is shown that the commissions found that the crime of high treason in foreign legislation, as well as in German legislation, is always considered to be the most serious offenses and is always threatened with the most severe penalties. On page 3 of the document, we see that the commissions found the same at that time about treason. In connection with treason, too, it was found that foreign countries too punished a foreigner for treason, also if he had committed his offense abroad. I offer t is document as Exhibit 227.
THE PRESIDENT: It's received.
DR. GRUBE: The next document , which will have the Exhibit No. 228 is document 91, which in my document book appears on page 47 and following pages.
THE PRESIDENT: We don't find it yet. What page is it on in the English? Does anyone know? Some of these documents don't have your document number on them either.
INTERPRETER: Page 24.
THE PRESIDENT: Page 24 isn't even numbered.
DR. GRUBE: Your Honor, I have just found that this document begins half way through page 24.
THE PRESIDENT: Is that the one that starts, "Reichstag for the emergency period...."?
DR. GRUBE: This is an extract from the negotiations of the Pendlaw Committee of the Reichstag o in 1928, and it refers to the discussion on a draft for the German Penal Code.
THE PRESIDENT: Just a minute. We will name that for you: Document No. 91.
DR. GRUBE: Yes, 91.
THE PRESIDENT: Is that an exhibit of only about eight lines, or does it continue with the matter concerning the Reichstaf election period, 1928?
DR. GRUBE: Your Honor, may I just have a look at the Prosecution's copy ? ... Your Honor, it continues through Page 27. This document shows that the German Reich Government in 1928 already had intended to have a draft made of a penal law, according to which high treason, treason, offenses against the Armed Forces, against the people or against the bearer of a German office, were to be punished even if a foreigner committed the offense abroad. At the end of that document we see that the representative of the Social Democratic Party said at that time that the Social Democrats had no misgivings about making those offenses part of an International penal code. I offer this document as Exhibit 228.
THE PRESIDENT: The exhibit is received.
DR. GRUBE: Document 142 is an excerpt from the Reich Law Gazette of 1934, Page 27. The whole of this document 142 4 refers to the development of the question whether the prosecutor, and that included also the Reich Public Prosecutor at the People's Court and the Reich Supreme Court, is competent , without the Reich Ministry of Justice being involved, to file an indictment when a foreigner has committed an offense abroad.
The first page of this document is an extract from the law for the amendment of the penal law, of 24th April 1934. The last paragraph shows that in 1934 Article IV of the Penal Code was amended to the effect that the indictment of a foreigner for an offense committed abroad could only be filed with the approval of the Reich Minister of Justice.
THE PRESIDENT: You are referring to Paragraph "C" of Article II?
DR. GRUBE: In the heading it says Article II of the Penal Code will be amended as follows:
THE PRESIDENT: I see; all right.
DR. GRUBE: The next page of this document contains extracts from the penal code for the German Reich with notations by Frank. It contains the version of Article IV of the penal code such as was in force from 1934 until 1940. Then, on the same document, there is an extract from the decree concerning the competency of penal law, the areas over which it extended, of 6th May, 1940. That decree, Article IV of the Penal Code, was amended insofar as the provision according to which indictments of foreigners could only be filed with the approval of the Reich Minister of Justice, was removed from Article IV of the penal code and incorporated in Article 155-A of the Penal Code of Procedure. May I quote the decisive section in this new law, Article 153-A of the Penal Code of Procedure: "Offenses committed by a foreigner abroad may be prosecuted by the prosecutor only upon order of the Reich Minister of Justice." Then, in the same document there is an excerpt from the book Penal administrative Provisions. That excerpt contains a quotation from the general ordinance of the Reich Ministry of Justice of 21st May, 1935.
Article VII and VII appear in the document. Article VII, quite independently of the fact whether the offenses have been committed by foreigners is of general importance for the work of the prosecutor; that article contained the provision which has been mentioned again and again at this trial here, and from which it was resolved that the prosecution and the Reich prosecution too in all important cases must continuously report to the Ministry of Justice, to which it had to send copies of the indictments, etc. May I refer in particular to the end of Article VII, the sentence before the last says: That in general it is sufficient for the referents to communicate what decision was to be taken and to state that they would make their decision final if within a fortnight they had not received any instructions from the Ministry. That article further states that in connection with more important cases the instructions from the Reich Ministry of Justice must always be obtained first. Article VIII deals with the prosecution of foreigners. If refers to No. 300 of the Rules for Criminal procedure. Those rules appear on the next page, those directives. Under Section II of numeral 300 of the general decree by the Ministry of Justice, of 13th April, 1934, it orders: That in cases where foreigners are prosecuted for offenses committed abroad, the public prosecutor from the moment when proceedings are instituted, must continuously make reports to the Minister of Justice and unless there is any danger involved, he has to wait for instructions before he makes any important decision, for instance before an arrest warrant is issued.
I offer this Document as Exhibit 229.
THE PRESIDENT: The exhibit is received.
DR. GRUBE: Document 109 which follows is an extract from the book by Niethanmer which has teen mentioned here several times. Here, too -
THE PRESIDENT: Just a minute. What page is that on?
DR. GRUBE: Page 65 of the English book. Niethammer also points out that prosecution of foreigners for offenses committed abroad can only be instituted at the order of the Minister of Justice.
THE PRESIDENT: Exhibit 230 is received.
DR. GRUBE: The next document, 111, on page 66 of the English text, also contains excerpts from the book by Niethammer. May I direct the attention of the Tribunal to the last sentence of this document which shows that the court at every phase of proceedings was under obligation to pay attention to the fact whether the Reich Minister of Justice had actually ordered that a foreigner should be prosecuted for an offense committed abroad.
THE PRESIDENT: Exhibit 231 is received.
DR. GRUBE: The next document No. 110, in the English text on page 68, is an excerpt from the decree on the competency of penal law, a territorial applicability of the criminal low. The document shows that in 1940, as Article VIII of the Penal Code of Procedure, the following provision was introduced, "The court of the district in which the accused is kept in custody at the order of the authorities at the time of the filing of the indictment is also competent to try the case."
I offer this document as Exhibit 232.
The PRESIDENT: The next document, No. 59, on page 71 in the English text, is an affidavit by Najork. In this affidavit Najork gives an account of his son Horst after the Gestapo agent had denounced him; was arrested by the Gestapo in Carlsbad in 1943. Najork goes on to say that the matter was brought before the Reich Prosecution with the People's Court. The defendant Lautz, when Najork came to see him, had the Gestapo report re-examined by the Chief Reich Prosecutor Burkartz at Egar. As a result of that, it was found that the statements were untrue and proceedings were discontinued. I should like to point out that the defendant Lautz on the witness stand mentioned thin case. This document I offer as Exhibit 233.
THE PRESIDENT: The exhibit is received.
MR. LAFOLLETTE: If Your Honors please, may take this opportunity to perhaps get some indication from the Tribunal and Defense Counsel as to the proceedings tomorrow. I had in mind that there are still some Klemm document books which might be put in if Dr. Schilf is in a position to do it after Dr. Grube has finished, and I would like to know what the status is with reference to the defendants Petersen and Nebelung.
THE PRESIDENT: That has already been reported to your associate.
MR. LAFOLLETTE: Has the Klemm matter been reported?
THE PRESIDENT: No. Petersen and Nebelung will not take the stand according to cur information. We are ready to receive document book as far as the defense will present them.
MR. LA FOLLETTE: That would apply to the Klemm document books if they are available?
THE PRESIDENT: Yes. The Tribunal will recess until tomorrow morning at 9:30.
(The Tribunal aljourned until 29 August, 1947 at 0930 hrs).
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 29 August 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 at please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Rothenberger, who is absent due to illness, and the defendant Rothaug, who has been excused by the Tribunal at his own request.
THE PRESIDENT: Let proper notation be made.
For the convenience of counsel, the Tribunal has decided to continue with the taking of document books until noon today. At 1:30 this afternoon we will commence with the testimony of the defendant Cuhorst, this being in part, at least, for the personal convenience of the attorney for the defendant Cuhorst who has urgent business commencing next week.
Proceed.
DR. GRUBE: May I continue with my presentation of documents. Yesterday I presented documents from my Book IV-A, and I had gotten as far as Document 59, Exhibit 233. The next document from that book which I offer is Document 84. It is on pages 73 through 82 in the English text. That document contains first an affidavit by Bishop Dr. Dietrich of Wiesbaden, and the same document also contains papers which deal with case of undermining military morale against a clergyman in Wiesbaden.