Suchomel's memory must have failed him considerably. His statement can only be explained by the fact that he mistook for Mettgenberg the person supposed to have told him of such a visit at the time. Suchomel, in the question of euthanasia (exhibit 419) has already once before mentioned the name of my client in error. Suchomel has also been proved seriously wrong on other occasions. In particular I can point here to my statements made on behalf of Klemm with regard to the numbers of executions claimed by Suchomel to have been effected in 1944. My colleagues will probably add further incorrect declarations made by this witness. Mettgenberg's evidence in this respect is wholly credible (English transcript page 6296, German page 6109, English page 6319, German page 6121, English page 6348, German page 6157 and English page 6360, German 6169). Besides, it has been possible to introduce additional evidence proving that during the years 1943 and 1944 my client could not have made any journey whatever into the neighborhood of Mauthausen. This has been established not only from the statements by the witness Hartmann (English transcript page 9048, German page 8668), but also by the affidavit of the witness, Bruns (Mettgenberg exhibit 46) as far as the year 1943 is concerned and by the affidavit of the female witness, Velder (Mettgenberg exhibit 45) relevant to the year 1944. Assisted by these details, the Court may convince itself that my client's credibility could in no way be affected by witness Suchomel's tales.
Moreover, statements made by this witness, by my colleagues about evidence in this respect is wholly credible. Moreover, in cross examination in reference to his affidavit, Exhibit 543, Suchomel states he had never had occasion to doubt the credibility and truthfulness of Megggenberg, English transcript 7767. I do not say that Suchomel lied, but I declare with all emphasis that he made a mistake. Also other exhibits of the Prosecution furnish no evidence to the effect that Mettgenberg actually could have made this visit. It is wrong if the Prosecution in its final plea refers to Prosecution Exhibit 32 and believes to be able to insinuate that Mettgenberg handled reports of the subject of shootings and lynchings in concentration camps and other similar subject.
These reports were never handled by Mettgenberg. Exhibit 32 does not by any means reveal that such reports were handled. Exhibit 32 represents information which was circulated in the Reich Ministry of Justice and does not contain one single word of the subject of shooting of inmates in the flight. In a similar manner it is incomprehensible how the Prosecution believes to be able to identify or bring back in Mettgenberg's case a report of Prosecution Exhibit 310 which is a document submitted to the IMT. Originally it never became public in the Reich Ministry of Justice and could not have been made public as the document proves itself. Dr. Orth has also referred to this yesterday morning.
Finally, the Prosecution in its final plea reproaches my client, Dr. Mettgenberg, that he is responsible for lynching justice applied against Allied fliers. The Tribunal cannot give any consideration to this new incrimination. Various defense counsel therefore in their final pleas have already referred to the decision made in the physicians' trial according to which it is impermissible to raise a charge supplementary which was not contained in the indictment. The corresponding statements of the Prosecution in its final plea must, therefore, be rejected.
Moreover, my client, Dr. Mettgenberg, as a matter of fact has no reason whatsoever to fear the factual discussion of these matters. He was the Ministerial Dirigent who is mentioned in the note of the Supreme Ministerial Dirigent Steiner, dated 23 September, 1944, in Klemm Exhibit 86, English transcript page 13; he was the man who shared the opinion that the proceeding against Kluettgen must absolutely be carried through, and an arrest warrant must be produced.
Before I turn to Dr. Mettgenberg's activity in N.N. (Nacht und Nebel) affairs, I should like to refer briefly to individual questions of legal doctrine on behalf of the defense in general. The Prosecution and its alleged expert witness, Behl, have raised numerous objections of a general nature against the administration of justice, against the legislation, and against the jurisdiction of the the from 1933 until 1945.
In the course of the trial it has become obvious that Behl is not someone who could speak of these legal problems with real authority, compare Mettgenberg Exhibit 33 to 35). Here I only need to refer to the statements of Professor Jahrrelss' (English translation page 4253 and following, German page 4198 and following) who had something decisive to say about the problem of the development of constitutional law in Germany, as well as the relation of international law to German national law. In my final plea for Klemm, I had already seated that the application of analogy to penal law was no "tyrannical doctrine. Here i should merely like to draw the attention of the Court once more to the statements by Professor Schoenke, Freiburg, an internationally recognized authority compare Mettgehberg, Exhibit 23).
Also inasmuch as, during the so-called Third Reich, penal laws were made (retrospective) in a few cases (compare the exhaustive compilation by Schoenke in Kettgenberg Exhibit 16 referring to Article 2a of the Penal Code), the charge of inhumanity cannot be made against anyone. In all the cases which are mentioned then, the unlawfulness of these deeds was established. The principle nullum crimen sine lege could not be violated. The newer development in legislation, particularly on the basis of the charter of the International Military Tribunal and of law No. 10 of the Control Council, proves however that the were threat of punishment shall not, by its character and extent, take punishability for granted. There is no reason why this thesis, which has long been acknowledged in extracontinental penal law, might not have been accepted, at least partly, in German penal codification after 1933. If today the charge of an ex-postfacto law shall not be made against Law No. 10 of the Control Council, then the charge can also not be made against laws which already since 1933 showed similar tendencies in their legal theory. In no instance were new criminal facts of a case established; it was rather a question of actions, which had always been criminal, being made subject to another form of punishment. I should like to save myself further explanations of a theoretical character, but I should like to refer - out of the mass of documentary material as submitted by the defense - to my document book III for Mettgenberg, and here especially to Professor Radbruch's commentary on the verdict of the District Court of Constance in the Tillessen case of 28 February 1947, in Mettgenberg Exhibit 22.
I should like to add that Radbruch was even found worthy to be cited by the Prosecution in their trial brief of 23 June 1947.
The assumption, too, of the Prosecution that Germany had in an unlawful way extended the sphere of validity of its laws, has been proven wrong by the evidence. It may here suffice to refer to the evidence as submitted in my document book IV for mettgenberg, and further to the statements by Professor Jahrreiss and the Lotus case which has been thoroughly discussed by him and which had been decided by the International Court at Hague long before 1933. It is Professor Jahrreiss' statements that have given the Court the possibility of forming a correct judgment of these questions. He has described how in Germany Constitutional Law really developed and what sort of effects it had on all other legal spheres.
III. If now I come to the participation of my client, Dr. Mettgenberg, in the so-called N.N. affairs, I should like to state in advance that it cannot serve a just examination, especially of legal problems of the most difficult type, to lock at them from one side only. Even the strongest expressions in the enumeration of the charges made by the Prosecution (trial brief of 23 July 1947) do not serve the solution of legal questions.
At the examination of my client, Mettgenberg, the legal principle was explained how it was at all possible that courts, which were subordinated to the Reich Ministry of Justice, came to deal with these so-called N.N. affairs. The name N.N. affairs is incorrect. The Ministry of Justice always spoke of the "prosecution of punishable deeds against the Reich or the occupying power in the occupied countries" as is shown by the documents. With this the essential point of the whole affair was rightly described. It was probably because this description was so lengthy that the other but misleading name became familiar. It cannot be doubted that the German Occupying Power had the right to punish foreigners if these, as inhabitants of the occupied area, committed deeds which were punishable according to the laws of the Occupying power.
Furthermore it cannot be doubted, that they could be punished in the same way as if they had committed these deeds within the area of the Reich proper. This is the contents of article 161 of the Military Penal Code (Mettgehberg exhibit 12). This regulation, which long before 1933 also existed in other countries, has never been described as violating International Law. Which individual criminal deeds are meant, is apparent from the penal law, which for Germany has been formulated in the Special Military Penal Code (Mettgenberg Exhibit 10). No occupying power can tolerate espionage, sabotage within war areas, partisan activities and offenses against lawful orders of the Military Commander. According to the supplement to the Hague Convention which contains the regulations concerning the laws and usages of land warfare, the inhabitants of the occupied country are bound to observe the fundamental regulations which are intended to guaranee public order and public life. According to the Decree concerning the Military Administration of Justice (Mettgenberg Exhibit 11), the German legislator has made a regulation of jurisdiction, which cannot be objected to from the point of view of International Law, and has decided that foreign civilians who usually come under Martial Law, could be dealt with by the general courts of the occupying power. Neither the Hague Convention concerning Land Warfare, nor the Rules of International Law, nor any other codes demand that such trials should be dealt with only by Military Courts. A clear Legal principle therefore exists, which in fact governed the procedure against N.N. prisoners. At the discussion of the legal principle of these proceedings, Dr. Mettgenberg (Translation English page 6274 and following, German page 6090 and following) further pointed out that besides these two material and procedural groups of regulations, the proceedings have also been influenced by the so-called Fuehrer decree of 7 December 1941 (Translation English page 6275, German page 6091). Here I should like to state that this "Fuehrer decree" has affected the proceedings only insofar as strict secrecy was ordered.
Only this duty to treat the matter as secret, which all participants in the case had to observe, gave the procedure the special character of the N.N. affairs. It will have to be discussed whether in this way an offense against international Law can be construed against this legal procedure. It is the only point which might evoke doubts at all in this respect.
Professor Jahrreiss had an opportunity of explaining to this Court the significance of a Fuehrer decree as an act of legislation. All officials who at any time had had anything to do with N. N.
affairs; had; according to Professor Jahrreiss' statements; to start from the supposition that they did not observe secrecy simply on an "order from above"; but because it was in law. This is important with regard to the question - subjectively speaking - whether the new principles concerning the responsibility of individual law the aspects of international law can be applied at all to any one of the defendants.
This Fuehrer decree of 7 December 1941 was based exclusively on political-military reasons. The letter of the OK./ 9High Command of the Armed Forces) to the Foreign Office of 24 September 1941 (Mettgenberg Exh. 13) has explained the background which three months previously had already led to Hitler's decree of 16 September 1941. The intimidation of the occupied war areas which Hitler and Keitel intended with the decree of 12 December 1941 and its reason in the constantly increasing resistance against the German occupation troops.
It was not intended to affect those who had already made themselves punishable, but it was hoped thereby to prevent punishable deeds in the future (compare letter from Canaris to the counterintelligence offices Kettgenberg Exh. 39). As far as the carrying out of legal proceedings was concerned which had to be dealt with within the sphere of the Reich Ministry of Justice, this objective could thus play no part at all. The NN decree has been objected to by the International Military Tribunal only because of this objective. With regard to his objective the decree may have violated Article 46 of the Hague Convention. No objection was made nor could it be made against the fact that the culprits were "condemned and punished in Germany", (compare Part 7 under the title of the verdict of the IMT "Murder and Maltreatment of Civilian Population"). With regard to Keitel, too, the only act regarded as criminal was his order to hand over guilty civilians to "the Gestapo for deportation to Germany".
The findings of the International Military Tribunal therefore cover entirely different ground. It is perhaps possible to characterize as "deportation" the way in which persons who had been found guilty guilty of punishable deeds, were taken away from their home-country.
But the problem which has to be decided upon by this Court is only concerned with the question whether the legal officials who are here as defendants have collaborated in such "deportation" or even whether they favored it. According to the evidence this is out of the question. The defendants in this case had only to deal with regular proceedings before the courts. The statements of the Prosecution in their trial brief of 28 July 1947 cannot change this fact. The reference under I that the presence of the NN, prisoners at the trial in Germany was compulsory, and therefore differed from proceedings against Germans, not only leads to an erroneous conclusion - criminals, especially if caught in the act, are arrested everywhere and forcibly led before their judge - but also cannot concern the defendants as they could never have been instrumental in the transportation from the occupied areas to Germany. That was the exclusive concern of the Wehrmacht courts which transferred the case, authorities commissioned by them, such as police and the other departments mentioned in the letter Canaris (Mettgenberg, Exh. 39). It is further maintained in this trial brief under I B that the NN decree was "admittedly a terror measure"; and this cannot concern the defendants either. It can only have referred to the purpose of the general preventive measures and to the circumstances governing the removal of the culprits from the occupied areas. But the responsibility for this does not lie with any department connected with the administration of justice which had to deal with such proceedings within its competence according to established laws. Keitel's testimony before the IMT deals only with political-military reasons insignificant to the development of the legal proceedings. Justice was never intended to deal with matters which concerned the occupying power; it was its duty to administer justice according to International Law. The question is only whether the departments for the administration of justice alone because of their pledge to secrecy could be guilty of a violation of the articles of war.
Judging objectively this is not possible, because this secrecy for departments of the administration of justice was justified as a military necessity according be the conception of Internation Law at the time, based on the Hague Convention. Control Council Law No. 10, II, first section, paragraph b, expressly recognizes the justification of actions mentioned therein through military necessity. The Prosecution also especially emphasized this justification in their final plea, supplement 4. That the secrecy was due to this military necessity is shown in Mettgenberg exhibit 15 and 15a. The powers occupying Germany today have specifically ordered secrecy in individual cases for security reasons. Exhibit 15a contains directives from the government of USA given to General Lucius D. Clay, and it is stated that persons under arrest are permitted "to contact close relatives or friends, unless an exception is warranted owing to compelling security reasons." Security reasons can only be legally based on the military necessity of the Hague Convention. In the trial brief of 28 July 1947, it is attempted to dispute the defendant's justification in referring to military necessity. It is even maintained that this basic rule (compare Prof. Laun's statement, Mettgenberg Exh. 14) no longer conformed with International Law, as the former occupying power, Germany, violated International Law by starting a war of aggression. As far as I can see, the attitude of the Prosecution is moreover not logical in this respect. In their trial brief of 31 July 1947 on the theory of criminality under I A their object is to prove that the Hague Convention is an important basis for the definition of the term "War Crime" as laid down in Control Council Law No. 10. The stipulation of the IMT concerning aggressive war as a violation of Internation Law, can by no means be interpreted to mean that an unlawful aggressive war also renders unlawful the actual state of the occupation as such. If an aggressive war leads to occupation, the laws and customs of war on land as stipulated in the Hague Convention, must be adopted. Any other conception would lead to the conclusion that an occupying power is exempted from its obligations according to the Hague Convention, if the occupation is occasioned by an unlawful war of aggression.
Only that occupying power would be tied to these obligations which waged war lawfully. It is understood that the Hague rules not only should apply to the privileges, but also the obligations apply to every power once the actual occupation has become a fact. War commenced in violation of Internation Law must also conform to the International agreement on the rules of war compare Mettgenberg exhibit 42). If a different legal interpretation were applied, every German soldier who killed his enemy during the war committed murder in the legal sense and could be prosecuted, because he would not be justified in referring to the articles of war in the case of an individual act of war. In dealing with the question under discussion, we must therefore undoubtedly start from the principle that the defendants can refer for their justification to the articles of war, that is also the fundamental agreement of the Hague Regulations for War on Land. According to this, the military interests of an occupying power take precedence over the most fundamental rights of a member of the occupied state (compare Mettgenberg Exh. 14). For these reasons my argument expounded in my opening statement for Mettgenberg that these military interests were a justification for secrecy, still holds good.
With the developments during the war, of course, up to the military authorities whether or not in their legal directives they allowed themselves to be guided by arbitrary judgment of the military necessity as laid down by the basic agreement of the Hague Regulations for Land Warfare. The IMT condemned Keitel's actions, because, as military commander, he actually judged the necessities of warfare arbitrarily. The departments of the administration of justice, entirely inexperienced in military matters, could not by any means survey or even judge whether or not the directive concerning secrecy issued to themthe relevant part of the NN decree - was the result of arbitrary judgment on the part of the military commanders.
As for details I would like to draw attention to circumstances described by my client Mettgenberg in his examination as witness (English transcript page 6277, German p. 6092, English p. 6332 and following and German p. 6143), and in this connection also to his statement about the relation of the criminal procedure in N.N. matters to Article 43 of the Hague Rules of Land Warfare (English transcript p. 6333 and following, German p. 6145 and following, English p. 6353; German p. 6161 and English p. 6359 and following, German p. 6167). His statements coincide with Professor Laun's comments on the conception of military necessity (compare Mettgenberg exh. 14). In the official German text referred to by the IMT in the verdict in Section 4, "Violation of international agreements", with reference to Reich Law Gazette 1910 p. 98 and following, the original French text "necessite militaries" has been translated as "military interests". But essentially it makes no difference here. If a violation of International law is to be deduced from the fact that the departments of the administration of justice did not break their pledge to secrecy enforced by law, then the question arises as to which rule of International Law they might otherwise have violated, because as has been shown, they can definitely refer to the regulations of the Hague Convention which are in their favor and also to Allied Control Council Law No. 10. It is not clear which is the rule of International Law in question. The Prosecution thinks it has found away out by accusing my client Mettgenberg under point 13 of the indictment of a crime against humanity at the same time. In the final plea this approach was not maintained by them. It has been shown in the evidence as well as in the documents submitted by the Prosecution that it was the administration of justice in particular which endeavored in all cases to act humanely in NN proceedings and this was only in accordance with its general opposition to the police authorities. The administration of justice, as has been shown, had nothing to do with the outward intimidation aimed at by Hitler and Keitel. It was only connected with the NN decree in as much as the second regulation is concerned (compare Mettgenberg Exh.
39), that "no information whatsoever" was to be given on the "location and fate" of the accused. If, however, this pledge to secrecy is justified in the case of the defendants by military necessity with regard to the charge of having committed war crimes, then the same applies to the charge of crimes against humanity. In their trial briefs the Prosecution frequently mentions that International Law is constantly developing. That, in fact, was the only argument on which Justice Jackson was able to base responsibility of the individual towards Internation Law. The fact that International Law is only partly codified, and in its basic principles represents a law, which is constantly developing and varying in applicability, makes the judgment of the defendants before this Court specially dependent on the subjectivity as part of their actions. It is unimportant in this connection to refer to Keitel's statement before the IMT, where he gave no information on and obviously was not able to state how the criminal procedure was handled within the administration of justice. His statement cannot affect our proceedings. Just as the defendants here could not perceive whether Hitler and Keitel judged the question of military interest arbitrarily at the time, they could not recognize subjectively whether there existed a "compelling obstacle" in the sense of article 43 of the Hague Convention, which justified the military commanders in ignoring the laws of the occupied country. They would only have been in a position to do so if the evidence which has been submitted now, had then been at their disposal. The opposite cannot be proved by the fact that the defendants Mettgenberg and v. Ammon repeatedly had consultations with military quarters. The reference to official journeys in the trial brief of 26 July 1947 under I b is moreover entirely irrelevant. Quite apart from the fact that my client Mettgenberg made only one official journey during his work on N.N. matters (English transcript p. 6303, German page 6115), there was no chance for any of the accused civilians to gain insight into military necessities, The decision rested only with the military commander.
In the Hague Convention he is described as the responsible party. The conference and official journeys merely served for the study of details of criminal proceedings and views held by military courts not those of the military commanders.
The only thing that is correct is, that the persons concerned had to realize that the "resistance" was a great danger to the occupation troops, and that the military commanders had to find means to protect the troops.
It is self-evident that the defendants could have had no idea that the occupation as such could at some later time be regarded as being unlawful. The court has learned from the statement of the witness Fritzsche, how distribution of news was monopolized and directed during the war. An ordinary mortal in Germany really could not look into the aims and plans of the dictators.
Regarding the trial brief of the Prosecution dated 28 July 1947, some points appear to need mentioning: It was asserted there that the Geneva Convention regarding the treatment of prisoners-of-war applied also to the N.N. prisoners. This is a mistake. The N.N. prisoners were only civilians, who were in general entitled to protection only within the limits of the 3rd sub-section of the appendix to the Hague Land Warfare Order. The assertion which the Prosecution makes in this regard is absolutely new, and it conflicts with the view taken by the IMT. There, the so-called Night and Fog Decree (Nacht and Nebel Erlass) was dealt with in the 7th chapter under the heading "Killing and Maltreatment of the Civilian Population". Also, the part of this verdict concerning Keitel stresses that the people concerned were "Civilians", accused of the crime of resistance against the occupation army. This reference is also sufficient to invalidate the subsequent conclusions of the Prosecution regarding the allocation to armament factories.
The other thing that is to be said with reference to this trial brief regards the assertion under II, that the defendants had become guilty, even according to the German conception of law, namely of "kidnapping" and "deportation". The laws of the German Penal Code quoted by the Prosecution show, that it is also wrong to view the legal implications from this angle.
It was not the legal authorities who decided who was to be brought to Germany. Neither did they have anything to do, as stressed before, with the deportation as such. If one were to accept the Prosecution's deduction, one would logically have to class each arrest of guilty or suspected persons under the same category as subject to the same regulations.
Finally I must object to the way the trial brief, dated 28 July 1947, is arranged. This "chronological arrangement" is no help to the court, because the individual documents are not correctly reproduced in their essential contents. In part they are given so incompletely that one must describe them as contorting or misleading. I do not intend to deal with this in detail, but take the liberty, nevertheless, to bring a few examples to make my point clear. Already in connection with exhibit 303, Bohemia, Moravia and the Ukraine are mentioned; the document, however, says on the contrary, that these were the very territories where the N.N. decree did not apply. Again, this document does not say, that the Reich Justice Minister was personally responsible for the introduction, when he was actually only given full powers to decree implementation regulations for his sphere of competence. Misinterpretation of the contents of the document occurred likewise in connection with exhibit 319; the conclusions drawn from exhibit 322 are wrong; concerning exhibit 325, even figures are misquoted and the like. The court is itself in possession of the documents. It is therefore not necessary to accept explanations from one or the other party as to what they see fit to make of the documents concerned.
IV. As regards the details of the procedure my client, Dr. Mettgenberg, inasfar as he could be held responsible, was able to make the necessary clarifications when testifying as a witness. Thus all the prosecution's misinterpretations, inasfar as they concern the documents which they offered, have already been corrected.
I can therefore save myself the trouble of once more going into details here. According to the legal position the competence of the inner-German courts had been based solely on the "Abgabe" declaration of the Wermacht courts. In his testimony Mettgenberg could explain the real meaning of "Abgabe" with the help of the documents presented by the Prosecution (English transcript page 6280 to 6282, German transcript page 6094 to 6097; it is to appoint a competent court. These facts agree also with the documents offered by me (Mettgenberg Exh. 39 and Mettgenberg Exh. 15b). No reference to "higher orders" is made in this connection either.
That Dr. Mettgenberg; jointly with all Ministry officials concerned with N.N. matters, fought against the influence of the police, was also shown in his and Ammons' statements. It became particularly clear in the trials dealing with criminal proceedings arising in the Netherlands (English transcript page 6298, German page 6112, English page 6301, German page 6114). That the Ministry of Justice opposed the decisions and efforts of the police, follows especially from the circumstances which led to the re-transfer of the N.N. cases to the military courts. The authorities concerned most emphatically did not obtain the permission of the Ministry of Justice to discontinue referring trials to German courts. (see Exh. 416 in contradiction to the statement of the Prosecution in the appendix to the trial brief dated 28 July 1947). According to the ruling on competence, in article 3 sub-section 2 of the Decree for Criminal Law in War, the legal administration certainly had to accept the decision of the Wehrmacht High Command. The competence of the legal administration was delegated. This was cancelled by decree in fall 1944 (see statement Mettgenberg, English transcript page 6286, German page 6100). The result was, that all the prisoners, insofar as they were in custody at that time, were taken back by the actually competent authorities. It is in fact by foreign nationals abroad, but it is incorrect if the Prosecution asserts that at any time an NN prisoner had been brought before a German Court under the charge of high treason.
I have cited the above mentioned facts which were alone competent for substantial punishment. Because of high treason this was never the case but nevertheless there were proceedings for favoring the enemy, and now that is part of 91 B of the German Penal Code. In those cases it could be established without doubt that these charges contained attacks against the occupying powers. The Prosecution has not been able to submit any other verdict and no documents from which it could be seen that NN prisoners were ever prosecuted before the Peoples Court under the charge of high treason.
The trial itself was conducted according to German criminal procedure. Witnesses, who were acquainted with these trials and the verdicts, have declared unanimously that they could not be considered contrary to International Law. I refer in this connection to the statement of the witness for the prosecution Lehmann, (English transcript page 2587 and following, German page 2578 and following), whose statements are especially important because he was chief of the Wehrmacht legal administration in the OKW, and could survey developments from the time of the issuance of the decree on 7 December 1941 up to the time of the decree of fall 1944. He could ascertain that no blame attached to the activity of the legal administration from an international point of view. The Prosecution in its trial brief dated 28 July 1947 quoted the statement of the witness Lehmann under I, to the effect that he had tried to convince Keitel that the NN decree should be rejected for reasons of justice and judicial policy; this did not refer to the procedure within the legal administration, but exclusively to the purpose of discouragement by terror, which Hitler and Ieitel thereby outwardly pursued. I can further refer to the statement of the witness Roemer (English tr. page 2654 and following, German page 2639 and following), who, no matter how many verdicts against NN prisoners he had the opportunity to reexamine, did not find one infringement of material or procedural regulations. The witness Lautz, too, found this in the course of his work (English transcript page 5924, German page 5770). The sentences as such were not excessively harsh either. The Prosecution was not able to produce one sentence pronounced by the People's Court or a Special Court, to show the opposite.
The legal authorities also tried other ways to alleviate the lot of the NN prisoners. Thus they kept prisoners in their custody longer, although the police had demanded their return. Therefore, from a human point of view it is particularly unfair, if the Prosecution in its trial brief sees fit to refer to the opinion of the police. It is self-evident from exhibit 381 that in actual fact the legal authorities opposed the opinion of an RSHA. official, that the NN measures were equivalent to renouncing regular criminal procedure.
The Court had sufficient opportunity to follow up the activities of my client, Dr. Mettgenberg, in every detail. I am convinced that my client as an individual cannot, on the strength of his position in the Ministry or his work in general, be held according to International Law. Also, I may be permitted to ask the Court to take my client's disposition into account. It was dominated by the moral views of constitutional thought. In view of these objective and subjective considerations, nothing is left of the charges of the Prosecution. I am therefore able to apply for the acquittal of my client on all points of the indictment.
DR. WANDSCHNEIDER: Your Honors, shall I speak for the defendant Rothenberger immediately or is the recess to be inserted at this point?
THE PRESIDENT: You may proceed. We are utilizing every moment today.
DR. WANDSCHNEIDER: Your Honors, I don't want to frighten your Honors by professing to read the entire take, but I would like to say that I consider it right only to quote those portions which appear essential to me. It is clear that the Tribunal will read the entire document in detail, and on principle I don't see why my statement should be more impressive if I read the whole document. On the other hand, I would like to be sure, and would feel safer in feeling so, that whatever I do read will be presented by me quietly, and I am fully confident of this.
THE PRESIDENT: You undoubtedly wish the same ruling which we have made before, namely that the entire argument be incorporated in the transcript in full. That order will be made and the proper authorities are notified to that effect. You may proceed.
DR. WANDSCHNEIDER: Thank you, your Honor.
For information concerning my plea, I made a survey and an index, and under the individual items of this index I have also indicated the entire number of exhibits which are involved. Figure 1 of my final plea are "General Preliminary Remarks." Of these General Preliminary Remarks, Figure 1, I shall only read a small portion referring to the evaluation of witnesses testimony. This is on page 3 of the German, and starts with the words, "In considering the testimony of witnesses..." I. General preliminary remarks.
After the proceedings and the taking of evidence in this trial have been closed for good, it is now the duty of the Prosecution as well as of the Defense to give a comprehensive picture of their points of view based upon the whole of the matter brought forward in this trial. It cannot, however, be the task of the Defense simply to reproduce before the Tribunal the mass of the material. What really matters is to throw into focus the guiding principles which, like sign-posts, will show the road the Defense will take and the train of ideas it will follow in ploughing through the great mass of judicial matter, hard as it is to survey, It is obviously of great importance to establish soberly, in the first instance, whether and how far, the individual charges must be considered to have factually and conclusively been proven, or whether the statements of the defendants to the contrary must be accepted as proven, or at least credible, or not refuted. The Defense will have to show the individual facts in their connection and interdependence amongst themselves in order to make visible the organic relationship of the actions of the defendant. In spite of the necessarily and unavoidably subjective character of the defense we shall refrain from the policy of touching up our material.
An honest attempt will be made, in spite of, or rather because of, our serious desire to present a most effective defense, to distribute light and shadow justly and to present to the Tribunal not some sort of homunculus but a living human being with all the good qualities and all the failings which are the heritage of Man. One might object that this is not necessary, as the defendant has already made, as it were, an exhibition of himself before the Tribunal, so that it has, therefore, a good idea of him -- and of his way of thinking and arguing as well as the spontaneous and instictive picture of his personality. Here, however, one may be led into great errors. This trial is unique, insofar as all of the participants especially the defendants -- but for a few exceptions, are lawyers. It is known that every man is the worst judge of his own affairs; this applies quite particularly to lawyers. They have not got, as it were, the archimedical point from which to gain a true picture of themselves. The more rational and intellectual a type of man is, the greater is his inability - in case his own affairs are concerned - to arrive at a true judgment of himself and to present an unbiassed picture of himself to others.
As to the principal kinds of evidence in this trial, some words may be added. In this trial documentary proof plays a decisive part. In spite of the most decent attitude of the Tribunal in the granting of applications to be supplied with documents, and the obliging attitude of the Prosecution in the individual cases, as well as the efforts of the defense center itself, the Defense could not get at the document collecting points themselves. The plea that applications could be made, does not hold water; for, in order to make such applications, one must first know what exculpating material there is in the document centers. It is impossible for the defendant after the passage of a number of years without surveying and examining the confiscated documentary material, to say this off-hand. This disadvantage at which the defendant is, proves even more harmful to him through the fact that the Prosecution has the procedural right to bring to the knowledge of the Tribunal, out of the documents collected, the incriminating facts only and not to produce any exonerating documentary proof they may have found.