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.
There would be no harm in thus producing unilaterally the documentary proofs, admissible as it is, if the defendants had, likewise, been able to survey the whole of the documentary material and could have utilized it for the presentation of their point of view. As this is not the case, the evidence of the defendants had to be, to a greater extent as has been generally recognized, colorless and abstract, when, otherwise, after the memory had thus been refreshed by documents and the presentation of concrete facts, a much livelier and more convincing presentation would have been possible. Only part of the documents introduced by the Prosecution is directly concerned with the counts of the indictment themselves. A great part is concerned with the exposition of the alleged criminal preconceived ideas in the field of ideologies and policies which are at the root of the criminal acts charged in the indictment. It concerns the exposition of the atmosphere and background whose importance must, on no account, be understood. The defendants, greatly hampered by their impossibility to underline and to illustrate their exonerating picture through reference to complete documentary evidence, have been forced to rely in part on more distant proof which, and not in the last resort for this very reason, has not very great probative value. To quote one instance here: There is no doubt that a much livelier and more convincing impression of his attitude could have been gained, had Dr. Rothenberger been able to produce the numerous reports on the situation containing concrete demands and criticisms, which the then President of the Hanseatic Court of Appeal, driven by his opposition to Gestapo methods and SS, sent to the Reich Ministry of Justice. Thus, Dr. Rothenberger was under the necessity, in order to make clearer his ideas and plans, to refer, to an overly great extent, to his own literary production and that of others, and to submit affidavits concerning his opposition to the Gestapo methods and SS.
It is a matter of course that this cannot possibly be so convincing as Dr. Rothenberger's own report on the situation dating from the time under discussion.
In considering the testimony of witnesses, the kind of evidence second in importance only to documentary evidence, I have to point out one problem which is not of minor importance either. As far as German witnesses were concerned who had formerly had any connections with National-Socialism - and this was the case with almost all of them the mere fact that they had to testify, irrespective of whether they made affidavits or appeared before the Tribunal, made them feel uneasy. You may call this a human weakness but it is none the less a fact. Nearly all of them felt that as a result of their former more or less intimate relationship with National-Socialism and through their becoming involved in the war crimes trial, their lives were in jeopardy somehow. Two typical reactions on the part of such witnesses can be noted. The less a witness at the present time wants to have had anything to do with National-Socialism - though in reality he had quite a lot to do "with it - the more he tries to-day to dissociate himself from the defendants. Thus, for reasons of his own exculpation, he will unjustly exaggerate and unduly emphasis the charges of the prosecution. Arrayed on the other side are the "witnesses who will depose "in favor" of the defendants and their conduct. Their depositions must, of course, also be judged with the proverbial salt- inch of caution and reserve, because in their case, there is the chance of their colouring the depositions to suit the defendant for reasons of solidarity. But on must not assume that, on the whole, these testimonies, the favorable ones and unfavorable ones, cancel one another out. The Defense, as by duty bound, points out that undue emphasis and exaggerations of witnesses in favor of the defendants are easily detected as such, and viewed critically, by the Tribunal. On the other hand, it is easily understandable under the laws of psychology that depositions unfavorable to the defendants, made by witnesses trying to enter into the spirit of Anglo-Saxon democratic ideas and depicting their own conducts correspondingly, are given more credit.
With regard to the question of how to judge these two opposing types of witnesses, the Defense is of the opinion that, as a matter of principle, the witness who, at a not inconsiderable risk, testifies to something that is "favorable" to the defendant displays more strength of character and is therefore entitled to greater credibility than he who, for opportunist considerations, wittingly or unwittingly, incriminates the defendant. This is only a general discussion of the fundamentals and I do not mean to say that in an individual case a deposition should not be judged quite differently.
This closes Figure 1, and I now refer to Figure II of the indictment pertaining to Special Courts. The following appears relevant to me: Page 2 of my figure 2 with, "A much more decisive factor..." There is no need to mention expressly that the testimony of witnesses who either were not personae gratae in the Third Reich, were not Party members, or were even persecuted, are of particularly great probative value. The Defense is convinced that the Tribunal will judge the evidence objectively and will also take in consideration the criteria above mentioned.
Political considerations have no place in the argumentation of the Defense. As for the difference between Anglo-Saxon and German ideologies and conditions, and with it the difference of political ideologies and conditions, the importance of these ideological and political conditions is confined to this: They must, for reasons based on the conception of law, be taken into consideration as the concrete circumstances surrounding the facts, as in all other national proceedings, for the objective facts and the dolus of the perpetrator.
The Defense will proceed according to the inductive method, will try in the case before us, to extract the criteria from the established facts and subsequently make the necessary legal pleas. It will also deal in brief, as far as this appears to be necessary in the face of the incriminating evidence, with the various counts in which Dr. Rothenberger has not been charged with special responsibility.
II. Case 9/21 of the Prosecution:
Dr. Rothenberger can only be charged with the following offenses in order to Remain within the accusations as stated in the above point of the indictment:
The use of "extraordinary Special Courts.....for the creation of a reign of terror for suppressing political opponents of National-Socialism" and "pre-arrangements of sentences between the judges and prosecutors."
The principle points of the indictment against Dr. Rothenberger, as well as against the other defendants come, in accordance with the nature of the offense, in the main within the scope of the penal law and the execution of sentences. A number of documents have been introduced against Dr. Rothenberger which go back as far as 1933. In consideration of the fact that, according to the written indictment, only offenses committed between September 1939 and April 1945 have been made the subject of an action at court, it therefore appears to be in order to examine, separately, first the facts in question until the beginning of the war and then those after the war broke out. Dr. Rothenberger's appointment as State-Secretary in August 1942 is laid to his account in order to substantiate his special responsibility. To begin with it is, therefore, in order to set forth the importance of Dr. Rothenberger's position as State Secretary.
Considering the title, one is inclined to overestimate to an extraordinary degree the actual and legal authority of a State-Secretary so position - and even that of a minister's - in the totalitarian National-Socialistic state. It is true, that in the Weimer Democracy, as well as during Bruenings Presidential Cabinet, the Reichskanzler himself outlined general policies and had been responsible to the Reichstag. It need not be specially mentioned in this connection. That this independent activity of a Minister in free responsibility towards the Reichstag came to a complete stop in the National-Socialistic state and that it was replaced by a strict adherence on the part of the Minister to Hitler's decrees.
A much more decisive factor to be considered is that relations between Minister and State Secretary underwent a fundamental change in the National-Socialistic era as compared to the time before 1933. The frequent changes of the parliamentary Ministers in the Weimar Democracy by necessity developed into a system where the State Secretary - who always remained in office when a change of Ministers took place - became the pivetal point of these over-changing events and therefore he acquired an extraordinary measure of liberty and the opportunity for independent decisions. Introducing strict relations between the different ranks of the ministerial bureaucracy resulted in an extraordinary reduction of the importance of a State Secretary from 1933 on. In the case of Dr. Rothenberger this became particularly evident, because when Dr. Thierack, the newly appointed Reich Minister of Justice, entered his office, he subsequently already on 27 August 1942 - reserved to himself the competence in regard to the entire penal law and execution departments and explicitly excluded Dr. Rothenberger, in his capacity as State Secretary, from taking part in the work of these departments. Consequently, Dr. Rothenberger, as State Secretary, had no influence whatever on the evolution of the penal law, particularly on the Criminal Courts, subordinated to Dept. IV of the Reich Ministry of Justice, namely the People's Court, Special Courts, the General Criminal Courts, Summary Courts and the General Prosecuting Authorities. For details in this connection we may refer to Exh. 45 and the divers affidavits, particularly to the one of the defendants Dr. Schlegelberger - R ' Exh. 36 - and to the organizational plan. Therefore we would like to state on principle that Dr. Thierack's legal policy cannot be laid to Dr. Rothenberger's charge. especially the increasing severity in the administration of justice, in view of the fact that Dr. Thierack had excluded him from bringing any influence to bear in this respect - which fact we shall prove later on - but, moreover, that the required information purposely and to a large decree had been kept from him to start with, which information is a necessary prerequisite for assuming any responsibility.
On page 4, of the German version, on the same subject, Roman figure II, I will proceed from there, starting with the following sentence -- it's in the middle of the page, the second sentence -starting with "It is significant...." (Page 9 in the English) The foregoing remarks, of course, only state our position on principle. It need not be pointed out that Dr. Rothenberger must assume responsibility and that he must answer to the charges of the indictment to the extent he had actually concerned himself with and had been responsible for any of these events. Moreover, he had never had a hand in current penal matters as a substitute for others with one exception that he had rendered decisions on pardons in a few cases. The respective department chief himself rendered a decision in current penal actions in the absence of the Minister, or else he simply let the matter rest until Dr. Thierack's return. The "Judge's Letters", introduced by Dr. Thierack, were brought to the official notice of Rothenberger only after their publication, with the exception of civil law cases. They were drawn up in a newly set-up ministerial bureau, which were subordinated directly to Thierack.
It is not correct to conclude from a passage in Dr. Thierack's letter of 7 September 1942 accompanying the first "Judge's Letter", which passage may also be found in a similar form in Rothenberger's memorandum, that Dr. Rothenberger had been the author. Of course, the Reich Minister of Justice as well as the expert drawing up the "Judge's Letters" were informed in detail of Dr. Rothenberger's memorandum. Dr. Rothenberger had nothing to do whatever with the formulation in question as contained in the letter accompanying the "Judge's Letters".
He never acted as a judge in any penal matter. In accordance with his talents and his interests he acted as a judge only in civil and prize-court matters. His connection with penal matters was limited to the administrative supervision of the criminal courts in Hamburg.
The Special Courts were established in 1933 by virtue of a decree of the Reich Ministry of Justice and was constitutionally permissible. Further discussions in this respect concerning the admissibility of Special Courts are hardly necessary and may be left to the colleagues concerned with these questions. We may state in this connection that there had been Special Courts long before this, some of which had been in existence for years, that Special Courts are courts competent for a distinct circle of persons and for definite matters by virtue of generally binding regulations; they, therefore, cannot be considered Extraordinary Courts. Establishing an additional Special Court in Bremen in 1939 during the war, setting-up a fourth chamber of the Special Court in 1942 and setting-up -, also in 1942, a chamber at the Special Court dealing with cases of plunder was carried out on orders of the Reich Ministry of Justice, that is, this was the outcome of conditions radically different from those at the beginning of war.
The Special Court's jurisdiction was continuously increased after they at first were restricted to offenses enumerated in the Reich President's Decree for the Protection of the Nation and State, dated 28 February 1933 and in the Decree on Malicious Attacks of 21 March 1933. The decree concerning the jurisdiction of the criminal Courts, the Special Courts and other penal regulations, dated 21 February 1940, that is shortly after the beginning of World War II, clearly shows in its article 13 this extraordinary increase of the jurisdiction. It is significant in this respect that the jurisdiction had been shifted from the field of politics to the field of the nonpolitical, general criminality. From now on the Special Courts passed judgment on the following general offenses: motor car trap robbers, offenses as laid down in the decree concerning public enemies, crimes of violence, and, above all, offenses against the war economy decree and offenses committed during black-outs, the importance of which steadily increased during the war. From the foregoing the Special Courts no longer possessed the characteristics of a political Court par excellence, but of courts handling in the main criminal cases in general, in support of this we refer to Exh.
588. Considering the extraordinary strain to which the nation was subject in every respect, the asocial behavior of the offenders against the war economy decrees and the violent criminals etc, quite naturally became the subject of increasing concern. It was in consideration of this aspect that Dr. Rothenberger had stressed the asocial nature of the crimes concerned and that he had called for the utmost severity in the punishment of such acts. In this respect we refer to the speech held in Luensburg, Exh. 26. and to the one held in Hamm, Exh. 54. Dr. Rothenberger has, neither in these speeches, nor in publications determined the criterion of asociality in any other way except by the fact whether the behavior of criminals was dangerous to the community. He has never designated as asocial by virtue of their race, members of foreign races, such as Poles and Jews. The fact that Dr. Rothenberger's attitude during the war towards foreigners was not dictated by fanaticsm is evident from his work as president of the prize-court, where the proceedings carried out by him were always objective and just as is shown by affidavits submitted. This is also evident from his rejection of the liquidation of enemy assets which he opposed successfully. Dr. Rothenberger's insistence on severity in criminal matters in general is in line with the terrible conditions during the war under which the German population was suffering to an extraordinary degree due to the increasing bombings. In view of those unusual circumstances, the bombing of German cities and the resulting lack of protection of the German population it seemed advisable to the defendant Dr. Schlegelberger to demand in June 1942.(Exh. 165) that special courts be established to deal with plundering after bombing attacks. With this instruction Dr. Rothenberger complied in Hamburg. As a result of the above circumstances he considered an extraordinarily mild judge to be unsuitable to be active at a special court, though he was capable. It would be inconclusive to interpret this particular decision as a general tendency on the part of Rothenberger to render the administration of justice more severe.
The prosecution alleges in their argument that control measures with regard to the administration of justice, introduced by Rothenberger, are relevent as they should be considered as measures to render the administration of justice more severe. This odes not hold true in reality.
Dr. Rothenberger's first control measures were introduced after the first Hitler speech of 26 April 1942 in the form of the so-called "preview and review". After Dr. Rothenberger's appointment as undersecretary these measures were, by analogy, applied to the administration of Justice in the Reich by the control decree of 13 October 1942, Rothenberger Exh. 64. He did not have any influence upon the carrying out of this decree, as this was up to the department IV exclusively.
The intention and purpose of these measures was outspokenly, as is shown by Ex. 76 (NG 389)
1) Protection of the judiciary from attacks of the Party and SS; in difficult situations he put his advice at the disposal of judges.
2) to achieve a certain uniformity of jurisdiction by joint conferences of the president of the court with the general public prosecutor and the president of the special courts. The practical purpose, of course, was to meet the attacks which could be expected to be launched by circles, hostile to the administration of justice. It is shown by the evidence, Dr. R's testimony, as well as the affidavit introduced and the documentary content of the control decree itself, that the facts of the case were never discussed in these conferences in advance. In the control decree of 13 October 1942, it has expressly been stated, that the facts of the case must not be ascertained before the trial, The measure of punishment has never been established in advance; on the contrary, Dr. R. has even occasionally streased the liberty of judges to decide as they see fit, whenever this appeared to be necessary and if the prosecution was occasionally too insistent in calling for certain severe punishment which it expected.
That the control measures meant, of course, a diminution of the independence of judges is evident. In order, to understand their meaning correctly one has to understand their historical premise and the particularly imperiled position of judges after Hitler's speech. Even before the control measures, the administration of justice was not free and independent. It only matters, therefore, whether Dr. R. by his measures intended to parry and avoid to the best of his ability the influence of circles, hostile to the administration of justice upon the latter. There is no doubt that the choice involved here was not between black and white, the absolute Good and the absolute Bad, but only the greater and smaller evil. Dr. R. tried to escape the greater evil.