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.
It has to be pointed out that since 1939 already, a practice existed which still more affected the administration of justice and was more debasing, and which was based on a decree of Guertner, then Reich Minister of Justice for he had decreed that the individual judge and the individual prosecutor had to get in touch with each other in cases to be tried. (Exh. 73; NG-445). Compared with this state of affairs the conferences on the presidential level as well as the administrative level, where only general policies were discussed essentially, constituted no doubt an improvement, a progress.
Dr. Rothenberger as well as Kaufmann, the Reichsstatthalter, declared before Hamburg judges after Hitler's speech that they did not in end to introduce blood justice (conf. Priess's testimony Prot. 9095). That Hamburg's tradition was opposed to the administration of justice in criminal matters to be rendered mere severely without restriction has been corroborated by documentary evidence. Reference is being made to the censure of State Secretary Klemm in 1944, in which he reproached the President of the Court of Appeal in Hamburg for too much leniency in the administration of justice, giving detailed examples. Schmidt-Hgk, President of the Court of Appeal at that time has pointed out in his affidavit that he continued along the lines of Dr. Rothenberger. In agreement with the above the witness Priess has testified that even during Rothenberger's term of office as President of the Court of Appeal there had been criticism on several occasions because of too lenient jurisdiction. From the affidavit of the witness Bacmeister it is also evident that Dr. Rothenberger never urged the administration of justice to be rendered more severe and never influenced it. In the face of criticism of verdicts passed in Hamburg, as too lenient especially by Freisler's censures, he took up for the judges.
THE PRESIDENT: We will take our morning recess at this time.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. WANDSCHNEIDER:
From the case Komorowski (Exh. 597) the tradition of Hamburg' jurisdiction is evident. This involves a Pole who, in 1942, had been sentenced to a short term of penal servitude for a sexual crime by the criminal court, not a Special Court. The negative position which was taken by the President of the district court at that time cannot be inferred to Dr. Rothenberger. In particular the preview and review, ordered by Dr. Rothenberger only on 7 May 1942 (see R. Exh. 9) had nothing to do with the conference of judges at the Hamburg district court (mentioned in Exh. 597) which took place on 5 May 1942.
THE PRESIDENT: Dr. Wandschneider, the request has come to the Tribunal, for reasons which are easily understood by us, that at the time of the brief statements which will be made by such of the defendants personally as desire to make them, that the persons interested in the case of the various defendants will probably wish to hear those statements and that the facilities in this room will probably be inadequate and, therefore, not for the purposes of a "Schauprozess," but in order to accommodate the friends of the defendants and of other persons here who desire to hear the defendants' statements, we will convene after the noon recess tomorrow in the large courtroom and the proceedings will be concluded there.
DR. WANDSCHNEIDER: I am now continuing with No. 2, Special Courts. That is on Page 13 of the German copy and also in English.
It says:
"Above all, the fact that Dr. Rothenberger was opposed to a unrestrained use of jurisdiction of the Special Courts and the undiscriminate extension of the jurisdiction of Special Courts is convincingly shown by his letter to State Secretary Freisler of 13 June 1941 (Exh. 583). In this letter he makes the complaint that crimes of general criminality, such as public enemy cases, war economy cases, offenses of violent criminals, etc. were not prosecuted any more before the Criminal Courts and Summary Courts. He regretted that too many cases were brought before the Special Court. He wants to avoid the bringing before the Special Court of insignificant property offenses and other less important offenses. His reasoning is especially significant for his point of view. He stated that apart from the watering down of Special Courts as a result of these proceedings one would have to consider that to be punished by a Special Court would constitute a twofold onus for the person sentenced, firstly the punishment, which was severer than the usual, secondly the moral onus. He declared that the bringing of trifling matters before a Special Court was, therefore, not desirable. From the differentiating in Dr. Rothenberger's letter the endeavour of exempting trifling cases from the competence of Special Courts for humane reasons is evident.
The reasoning, which has been emphasized for tactical reasons, is interesting. Dr. Rothenberger emphasized at first to State Secretary Freisler the view point several times that the importance of Special Courts should not be watered down by indiscriminate prosecution of almost all offenses before these. If one wishes to misinterpret the meaning of his letter intentionally, all one would have to do would be to stress this argument alone and to conclude there from that Dr. Rothenberger only wanted to increase the striking power of the Special Courts by his intended measures. This would amount to a forced construction, consciously overlooking the fact, that Dr. Rothenberger availed himself of an argument, skilfully presented and readily listened to, in order to achieve an effect actually, which was in the sense of a more humane handling of the administration of penal law.
Dr. Rothenberger did not sign the report, submitted by Section IV, on the harsh verdict passed by the People's Court on 4 June 1943 (Exh. 194). As has previously been explained he had nothing whatsoever to do with this Section as far as competence is concerned. Nor is he in any way responsible for the letter by the Reich ministry of Justice to the Chief of the Party Chancellory of 5 August 1943 (Exh. 142). Here too, were concerned penal low questions regarding foreign juveniles, for whom he was in no way competent and where for him every opportunity to exert influence was lacking. A single case contained in Exh.163, must still be discussed. In the case of Petrolinas, Dr. Rothenberger refused to grant a pardon to a stateless elderly men, who had stolen objects of little value, and who had been condemned to death by a Special Court. This decision can only be understood under consideration of the conditions prevailing after the terrible air-raids. It complies exactly with the attitude which had been laid down prior to Thierack's taking office b' his predecessor in a letter dated June 1942 (Rxh. 165). If, in arriving at a decision, one takes into consideration the fate of thousands and tens of thousands of severely damaged, as well as dead and injured fellow citizens, it is not permissible in such cases to sneak of a collision of duties or of inhumane treatment of the criminal in the event of refusing pardon.
Despite this it must be admitted that an especially tragic case is concerned, since Dr. Rothenberger, through no fault of his own, remained in ignorance of the fact that Petrolinas had himself been damaged by bombs, which was an important factor in the decision to grant a pardon. It is significant that Dr. Rothenberger, despite the tragic fact that the decision arrived at could not be rescinded, made inquiries as to why he had not been informed of this circumstance, without, however, receiving a satisfactory answer. The crime upon which the sentence was based was a purely criminal delict and not a political one.
Summarizing the following can be said with regard to the above count of the indictment: The most important characteristic of this count of the indictment, from the point of view of crimes against humanity, is that the defendant Dr. Rothenberger mis-used the Special Courts for political purposes. This was not so in any one case. No verdict which could have served to suppress political opponents, Jews, Poles and other foreigners has been presented against Dr. Rothenberger. In so far as Dr. Rothenberger's activities with the Special Court in Hamburg are concerned this was a case of prosecuting common, dangerous criminal acts.
It is significant that the Control Decree of 13 October 1942 does not mention Jews and Foreigners, i. e. does not differentiate between Natives and Foreigners.
II) Para. 9 and 21 of the Indictment Explanation: Ex. 100 = Prosecution Exhibit No. 100R'Ex. 1 - Rothenberger Exhibit No. 1 R'sta.5233 - Rothenberger Statement, German transcript page W'tes.
Hartmann = Witness testimony Hartmann.
p. .... German transcript page... ....
1) Rx. 113 and R'sta. p. 5240
2) Rx. 114 and R'sta. 5241, 5415
3) Ex. 115 and R'sta. 5241, 5415
4) Rx. 116 and R'sta. p. 5242
5) Rx. 76 and R'sta. p. 5264
6) Ex. 165 and R'sta. 5242
7) R'Rx. 54 (3. III p 57-59)Control decree of Dr. Rothenberger 1942 and R' sta. p. 5266-5269
8) Ex. 81 et sec. and R'sta. p. 5296
9) Rx. 194 and R'sta. p. 5321 10) Rx. 142 and R'sta.
5317, 5319 11) Ex. 462 and R'sta.
5243, 5330 12) Rx. 163 and R.'sta.
p. 5326, 5417 13) Rx. 587 and R'sta.
9062 14) Rx. 588 and R'sta.
9063 15) Rx. 597 and R' sta.
. 9060 16) Rx. 634 and R'sta.
9063 Furthermore to the subject Special Courts the statement of Dr. Schlegelberger R'sta.
o. 5240-5243, 5410-5416, 5445 17) W'tes.
. Dr.. Hans Hartmann p. 8682 18) W'tes.
Dr. Becher (p. 8602-8606) 19) W'tes.
Dr. Friedrich Priess p. 9095-0997 20) W'tes.
Dr. Timmermann p. 8819, 8823-8825 21) R'Rx. 5 (B. I p. 23-30) Aff.
Albert Schmidt-Egk 22) R'Ex. 7 (B. IV p. 80-84) = Pres.
Ex.. 474 23) R'Ex. 8 (B. II p. 16-17) Aff.
Georg Bacmeister 24) R'Ex. 11 (B. I p. 41-49) - Pro.
Ex. 76 25) R'Ex. 14 (B. I p. 65-66) Aff.
Dr. Reinhard Vogler 26) R'Ex. 16 (B. II p. 31-34) Speech at the opening of the German prizecourk 1939 27) R'Ex. 15 (B. I p. 67-68) Aff.
Dr. Georg Baur 28) R'Ex. 17 (B. I p. 69-71) Aff.
Walter Hinrichs.
29) R'Ex. 76 (B. app. I p. 56) Excerpts from "Deutsche Rechtszeitschrift 1946" I now come to Roman III and I should like to read the whole of that passage:
III. Gradually growing apposition of Dr. ROTHENBERGER to the SS and the Gestapo.
After he was appointed Justizsonator in Hamburg in 1933, Dr. Rothenberger naturally had to consolidate his position in which he succeeded after some experiences. Even if one could find some contradictions in his development, one fact can be established beyond doubt, namely, that he always opposed the SS in a strong manner in the years before the war, during the war up to his appointment as StateSecretary. No affidavits, but special documents from that time, may confirm that. In a report on the situation of 7 November 1940 ( R' Exh. 24 ) he critizises the fact that a certain "side" which was not at all informed, discusses such fundamental Questions as the independence of judges and the interpretation of laws. What is this "side" officially mentioned by him? Nothing else but the "official" organ of the Reichsfuehrer SS, the "Schwarze Korps". This happened one year after the SS, SD and the Gestapo had been combined by Himmler in one hand in the Reich Security Main Office and at the time when he stood nearly at the zenith of his power. In a report on the situation a draft of a bill concerning the treatment of people outside the national community, that is, of a social people. He protests against the fact that the cases concerning asocial people should be handled by the Reich Security Main Office, that means by Himmler.
He also raises objections against the fact that the Reich Rain Security Office, i.e. the Gestapo should decide who should be called asocial, and he wants to take away from the police the right to make this decision and to transfer it to a court.
This contemporary document speaks for itself and proves that Dr. Rothenberger objected to the fact that the handling of the questions concerning asocial persons should be left to the arbitrariness of the police, The report on the situation of 12 March 1942 (R' Exh. 26), written a short time before he was appointed State-Secretary is still more illustrative. I quote verbatim:
"There are even voices to be heard referring in this regard to our English enemies who, as we can conclude from our papers, openly admit their failures, 3. The opinion is also frequently expressed that the opponent should not be made too contemptible by our propaganda, he should not always be called inferior and not only be scoffed at. Especially our soldiers and the boys home on furloughs are constantly pointing out that they consider these abatements and belittling of the opponent as a depreciation of the accomplishments of our own Wehrmacht. Many people also dislike to hear that constant joking about and making fun of CHURCHILL, ROOSEVELT and ROOSEVELT's wife. It is believed that one should be moderate about this and that exaggerations and especially too frequent repetitions might have a contrary effect on the common people."
This happened at a time, when high - ranking personalities also disappeared within one moment in a concentration camp with the motivation that they had made "defeatist statements." There cannot be any doubt that Dr. Rothenberger's attitude which has unequivocally been proven by documents was truly the attitude of a sober - minded and considerate person, who bravely stood up in public for his opinions. It can not be doubted that in every respect he was the absolute opposite of the type of a unscrupulous, unrestrained fanatic.
I want to stress here his public statements concerning the "Schwarze Korps" which he made in Kiel (see R' exh. 211 Aff. Hansen) and in the detention prison in Hamburg, as well as his courageous attitude which he showed in meetings of the Chief presidents.
Here I interpolate a reference to the testimony by the Prosecution witness Buhl and the Defense Witness Priess who said that Rothenberger, at the meeting in the detention prison had explained that "swelling must be pricked." He was referring to abuses of the Gestapo.
And now I continue to read: Dr. Rothenberger was regarded by his colleagues as it was stated unanimously, as the spokesman of the opposition to the SS and Gestapo. We need not go into details concerning the nature of his opposition (the reversing of verdicts a.s.o.) I only want to point out again that Dr. Rothenberger always tried in vain to persuade the Reich Ministry of Justice to show a stronger attitude. (see Exh. 373, NG - 392 and Exh. 76 NG -389.)
These facts and Dr. Rothenberger's real attitude cannot be ignored. Such a brave attitude which had been proven beyond doubt, has to be appreciated still more because of the fact that Rothenberger surely lived in constant danger, as it easily can be understood if one considers Himmler's power. The above statements also apply, if it is correct that Dr. Rothenberger overestimated his position and that he had to make compromises when he was appointed State - Secretary. According to the opinion of the defense, the court will and should take those facts into consideration, later on, when the question of his credibility will be examined concerning the fact that he did not approve of the inhuman acts of the SS, and much less has taken part in them.
IV. Dr. Rothenberber's reform plans and his memorandum of 31 March 1942.
In the course of time a series of reformatory ideas concerning the legal policy resulted from Dr. Rothenberger's opposition to the SS end the Gestapo which culminated in his demand for a judiciary, independent - from directives and separated from the rest of the officialdom. These reformatory ideas are known to the Court from the records submitted by Dr. Rothenberger and they are also summed up in the memorandum. Therefore it is unnecessary to go into details. In retrospect, one might say today that the struggle for an independent judiciary and against a further expansion of the police power, was a fight against wind-mills and of no great importance. At that time, when the authorative State was flourishing, this fact was of great importance for Dr. Rothenberger and the judiciary. They at least attempted to change matters, while the rest was resigned and completely passive from the start. All his reformatory plans prove that he was firmly convinced that a change of conditions within the German justice could be achieved, even if his conviction might have been erroneous and his endeavours were destined to fail. Dr. Rothenberger put down his reformatory ideas in brief in his memorandum. They are based in principle - what a strange irony - on ideas of the present Jewish Minister of Justice of the German Eastern Zone Dr. SCHIFFER.
It is an urgent necessity to take a stand to Dr. Rothenberger's memorandum, especially when it has to be admitted that it is based on a complete misconception of the importance of Hitler's character and that he completely misjudged the strength of his antagonists, especially of HIMMLER and THIERACK and that he also overestimated his own strength.