It contains seven sections relating to the crimes intended to he prosecuted under the Hitler decree and the manner and place of trials and execution of sentences. Section I of the First Decree declares that the directive will be as a rule applicable in cases of:
1. Assault with intent to kill 2. Espionage.
3. Sabotage.
4. Communist activity.
5. Crimes likely to disturb the peace.
6. Favoritism toward the enemy, the following means: Smuggling of men and women; the attempt to enlist in an enemy army; and the support of members of the enemy army (parachutists, etc.)
7. Illegal possession of arms.
Section II of the Secret Decree declares that the culprits are not to be tried in occupied territories unless it is probable that a death sentence will be pronounced and it must be possible to carry out the execution of the death sentence at once; in general, a week after the capture of the culprit. It further states:
"Special political scruples against the immediate execution of the death sentence should not exist."
Section III of the First Directive declares that the judge in agreement with the Intelligence Office of the Wehrmacht decides whether or not the condition for a trial in occupied territories exists.
Section IV declares that the culprits who are to be taken to Germany will be subjected there to military court proceedings if the OKW or the superior commanding officer declares decisions according to Section III (above) that special military reasons require the military proceedings. In such instances the culprits are to be designated "prisoners of the Wehrmacht" to the Secret Field Police. If such a declaration is not made, the order that the culprit is to be taken to Germany will be treated as transferring according to the intentions of the decree.
Section V declares that "the judicial proceedings in Germany will be carried out under strictest exclusion of the public because of the danger for the State's security. Foreign witnesses may be questioned at the main proceedings only with the permission of the Wehrmacht."
Section VI of the First Decree declares that former decrees concerning the situation in Norway and concerning Communists and rebel movements in the occupied territories are superseded by these directives and executive order.
Section VII of the Secret Decree declares that the directives will become effective three weeks after they are signed and that the directives will be applied in all occupied territories with the exception of Denmark until further notice. The orders issued for the newly occupied Eastern territories are not affected by these directives. The order was expressly made effective in Norway, Holland, France, Bohemia, Moravia, and the Ukraine occupied areas. In actual operation, Belgium and all other of the Western occupied countries came within the decree.
The Hitler decree was sent to the Reich Minister of Justice on 12 December 1941 endorsed for the attention of defendant Schlegelberger. On the same day (12 December 1941) Keitel informed other ministries of Hitler's decree, directing that all such information proceedings were to be conducted in absolute secrecy.
On 16 December 1941, officials of the Ministry of Justice (Schaeffer and Grau, associates of defendant Mettgenberg in his Department III) drafted a proposed order for the execution of the Hitler NN decree by the Ministry of Justice, the courts, and the Reich prosecution. This was forwarded to General Lehmann, head of the OKW legal department for his approval.
Other correspondence took place between the Reich Ministry of Justice and the OKW relating to the final draft of the Night and Fog order.
This correspondence occurred between 16 December and 25 December 1941. It related to the reservation of the competency of the Ministry of Justice or Under-Secretary of State Freisler in the execution of the Hitler decree. These reservations were incorporated in a circular decree dated 6 February 1942, supplementing NN regulations as follows:
"Circular Decree:
"On the execution of the executive decree of 6 February 1942, relating to the directives issued by the Fuehrer and Supreme Commander of the Wehrmacht for the prosecution of criminal acts against the Reich or the occupation power in the occupied territories.
"For the further execution of the directives mentioned before I ordain:
"1. Competent for the handling of the cases transferred to ordinary courts including their eventual re-trial are: the Special Court and the Chief Prosecutor in Cologne as far as they originate from the occupied Belgian and Netherland territories, the Special Court and the Chief Prosecutor in Dortmund; as far as they originate from the occupied Norwegian territories, the Special Court and the Chief Prosecutor in Kiel; for the rest, the Special Court and the Attorney General at the County Court, Berlin. In special cases I reserve for myself the decision of competence for each individual case.
"2. The Chief Prosecutor will inform me of the indictment, the intended plea, and the sentence, as well as of his intention to refrain from any accusation in a specific case.
"3. The choice of a defense counsel will require the agreement of the presiding judge who makes his decision only with the consent of the Prosecutor. The agreement may be withdrawn.
"4. Warrants of arrests will be suspended only with my consent. If such is intended, the Prosecutor will report to me beforehand. He will furthermore ask for my decision before using foreign evidence or before agreeing to its being used by the Tribunal.
5". Inquiries concerning the accused person or the pending trial from other sources than those Wehrmacht and police agencies dealing with the case will be answered by merely stating that..... is arrested and the state of the trial does not allow further informations."
This supplementary decree was signed for Dr. Freisler by Chief Secretary of the Ministerial Office.
The letter of Under-Secretary of State Freisler to Minister of Justice Thierack, dated 14 October 1942, shows that in accordance with his promise to Thierack he had conducted preliminary proceedings through Reich departmental officials and with Lehmann, Chief of the Legal Division of the OKW, concerning the matter of the Ministry of Justice taking over the Night and Fog proceedings under the Hitler decree. Such top secret negotiations had lasted for several months. The last conference was held on 7 February 1942. On that day the final decree was drafted, approved, and was "the Decree of 7 February 1942, signed by Schlegelberger" as Acting Minister of Justice. Defendant Schlegelberger testified that he signed the decree. He thereby brought about the enforcement by the Ministry of Justice, the courts, and the prosecutors of a systematic rule of violence, brutality, outrage, and terror against the civilian populations of territories overrun by the Nazi armed forces resulting in the ill-treatment, death, or imprisonment of thousands of civilians of occupied territories.
The taking over of the enforcement of the Hitler NN decree was based solely upon the aforementioned secret agreement, plan, or scheme. All of the defendants who entered into the plan or scheme, or who took part in enforcing or carrying it out knew that its enforcement violated international law of war. They also knew, which was evident from the language of the decree, that it was a hard, cruel, and inhuman plan of scheme and was intended to serve as a terroristic measure in aid of the military operations and the waging of war by the Nazi regime.
We will at this point let some of those who originated the plan or scheme or who took part in its execution relate its history and its illegal, cruel, and inhumane purposes.
Rudolf Lehmann, who was Chief of the Legal Division of the OKW, testified concerning the Nacht and Nebel decree of 7 December 1941. He stated that even before the beginning of the wan and more particularly after the beginning of the war, there was a controversy between Hitler and his generals on the one part and between Hitler and the Gestapo on the other part as to the part which should be performed by the Military Department of Justice. He testified:
"Hitler held it against the Administration of Justice by the armed forces and within the armed forces that they did not sufficiently support his manner of conducting the war."
He further testified that Hitler had:
"used the expression that the military justice indeed sabotaged his conduct of war. These reproaches first emanated from the Polish campaign. There the Military Justice - the Justice Administration of the Armed Forces - were reprimanded that they had not acted sufficiently severe against members of bands. The next reprimands of that kind occurred during the French campaign."
Lehmann further testified that Keitel had passed on to him a directive which he had received from Hitler in October of 1941. This directive was quite long in which Hitler referred to the resistance movement in France, which he stated was a tremendous danger for the German troops and that new means would have to be found to combat this danger. There was therefore a discussion of the resistance movement. The army was opposed to the plan because it involved them in violations of international law of war. It was then suggested in the discussion that the Gestapo should be given that power. But even in this Hitler's ideas were overruled. It was at this point that he, Lehmann, suggested that the matters:
"should continue to be dealt with by judges, and since the aversion of Hitler against the armed forces' justice was known, it could he assumed that he would still prefer civilian courts than us."
Lehmann further testified that Hitler "attributed a higher political reliability to civilian justice later because later he took all political criminal cases away from us and gave it to civilian justice."
At this joint Lehmann discussed the matter with Under-Secretary Freisler because Freisler dealt with the criminal cases in the Ministry.
He was told by Freisler that the matter would have to be taken up with Schlegelberger. Lehmann further testified:
"I discussed with him the proposition that the cases which the military courts in France would not keep should be taken over and dealt with by and tried by the civilian justice administration. I can only say that Freisler told me that first he had to think it over; and secondly, he had to discuss it with Under-Secretary Schlegelberger who was at that time in charge of the Ministry. * * * Freisler told me that he had to ask the man who was in charge of the Ministry, the Acting Minister * * * for permission and authority on behalf of the Ministry of Justice to try the Nacht und Nebel cases. * * * As I was informed about the routine in the Ministry, Schlegelberger, who was then Acting Minister of Justice, was in my opinion the only person who could consent to take over these Nacht und Nebel cases by the Ministry of Justice."
Lehmann further testified:
"I have stated that * * * the plan had to be rejected for manifold reasons--for reasons of international law, for reasons of justice, and policy of justice, and primarily, because I said the administration of justice should never do anything secretly. I put to him: What kind of suspicion would have to arise against our Administration of Justice if these people, inhabitants of other occupied countries, brought to Germany, would disappear without a trace? In my mind, and in the minds of all others concerned, everything revolted against this particular part of the plan, which seemed to us to have much more grave consequences than the question of who should, in the end, deal with it. That was also the opinion of the leading jurists of the armed forces * * *."
Defendant Mettgenberg held the position of Ministerialdirigent in Divisions III and IV of the Reich Ministry of Justice. In Division III, for penal legislation, he dealt with international law, formulating secret general and circular directives. He handled Night and Fog cases and knew the purpose and procedure used in such cases, and that the decree was based upon the Fuehrer's order of 7 December 1941 to the OKW.
In his affidavit Mettgenberg states:
"The 'Night and Fog' Section within my subdivision, was headed by Ministerial Counsellor von Ammon. This matter was added to my subdivision because of its international character. I know, of course, that a Fuehrer Decree to the OKW was the basis for this 'Night and Fog' procedure and that an agreement had been reached between the OKW and the Gestapo, that the OKW had also established relations with the Minister of Justice and that the handling of this matter was regulated accordingly.
"I was not present at the original discussion with Freisler, in which the 'Night and Fog' matters were first discussed on the basis of the Fuehrer Decree. If I had been present at this discussion, and if I had had an occasion to present my opinion, I would, at any rate, have spoken against the taking over of the 'Night and Fog' matters by the Justice Administration. It went against my training as a public servant to have the administration of justice misused for things which were bound to be incompatible with its basic principles.
"Whenever Mr. von Ammon had doubts concerning the handling of individual cases, we talked these questions over together, and when they had major importance, referred them to higher officials for decision. When he had no doubts, he could decide all matters himself. We got these cases originally from the Wehrmacht and later from the Gestapo. The distribution of these cases to the competent Special Courts or to the People's Court, von Ammon decided independently. Von Ammon also had to review the indictments and sentences and to obtain the Minister's decision concerning the execution of death sentences. The question posed by the exclusion of foreign means of evidence was a legal problem of the first order. Since it had been prescribed from above, the Ministry of Justice had no freedom of disposition in this matter. This is another one of the reasons why we should not have taken over these things."
Defendant von Ammon was Ministerial Counsellor in Mettgenberg's subdivision and acted as head of the Night and Fog Section. The two acted together on doubtful matters and referred difficult questions to competent officials in the Reich Ministry of Justice and the Party Chancellery, since both of these offices had to give their "agreement" in cases of malicious attacks upon the Reich or Nazi Party, or in Night and Fog cases, which came originally from the Wehrmacht, and later from the Gestapo, and which were assigned to Special Courts at several places in Germany and to the People's Court at Berlin by defendant von Ammon. In his affidavit he states:
"The decree of 7 February 1942, signed by Schlegelberger, contained, among others, the following provisions: Foreign witnesses could be heard in these special cases only with the approval of the Public Prosecutor, since it was to be avoided that the fate of NN prisoners became known outside of Germany.
"The presiding judges of the courts concerned had to notify the public prosecutors if they intended to deviate from their notion for a sentence. Freisler noted in this connection that this constituted the utmost limit of what could be asked of the courts. The special nature of this procedure made it necessary to make such provisions.
"Later, when Thierack entered the Reich Ministry of Justice, he changed the decree in such a manner that the courts no longer had to declare their dissenting views to the Public Prosecutor, but that the acquitted NN prisoners or those who had served their sentences had to be handed over by the court authorities to the Gestapo for protective custody. Under-Secretary of State Schlegelberger himself was not present at the conference, but Under-State Secretary Freisler left the conference briefly in order to secure the signature of Schlegelberger.
"I must admit that, in dealing with these matters, I did not particularly feel at ease. It was my intention to get the best out of this thing and to emphasize humanitarian considerations as much as possible in these hard measures.
I have seen from the first Nuernberg trials that the court has declared the 'Night and Fog' Decree as being against international law and that Keitel, too, declared that he had been aware of the illegal nature of this decree. Freisler, though, represented it to us in such a manner as to create the impression that the decree was very hard but altogether admissible."
Mettgenberg and von Ammon were sent to The Netherlands-occupied territory because some German courts set up there were receiving Night and Fog cases in violation of the decree that they should be transferred to Germany. They held a conference at The Hague with the highest military justice authorities and the heads of the German courts in The Netherlands, which resulted in a report of the matter to the OKW at Berlin, which agreed with Mettgenberg and von Ammon that:
"the same procedure should be used in The Netherlands as in other occupied territories, that is, that all Night and Fog matters should be transferred to Germany."
With respect to the effectiveness and cruelty of the NN decree, the defendant von Ammon commented thus:
"The essential point of the NN procedure, in my estimation, consisted of the fact that the NN prisoners disappeared from the occupied territories and that their subsequent fate remained unknown."
The distribution of the NN cases to the several competent special courts and the People's Court was decided upon by defendant von Ammon. A report of 9 September 1942, signed by von Ammon, addressed to defendant Rothenberger, to be submitted to defendants Schlegelberger and Mettgenberg, stated that there are pending in special courts Night and Fog cases as follows: At Kiel, nine cases with 262 accused; at Essen, 180 cases with 863 accused; and at Cologne, 177 cases with 331 accused. By November 1943 there were pending at Kiel, 12 cases with 442 accused; at Essen, 474 cases with 2,613 accused; and at Cologne, 1,169 cases with 2,185 accused.
A note dated Berlin, 26 September 1942, for the attention of defendant Rothenberger, signed by defendant von Ammon, stated that by order of the Reich Minister the hitherto.
"exclusive jurisdiction of the Special Courts over NN cases is to some extent to be replaced by the People's Court of Justice."
A letter dated 14 October 1942 to Minister of Justice Thierack from Freisler, then President of the People's Court, states that he understood that a conference held on 14 October 1942 extended the jurisdiction of the People's Court over NN cases. Freisler states that he conducted the preliminary proceedings with Ministerial Director Lehmann of the OKW with regard to the ministry of Justice taking over the Night and Fog proceedings. He explains that the Night and Fog proceedings were top secret and no file or records were made in order to be quite sure that under no circumstances should any information be obtained by the outside world with regard to the fate of the alien prisoners. He also emphasizes the fact that under no circumstances could any other sentence than the one proposed by the Public Prosecutor be passed and to make sure of this in the technical routine it was decided that "1. The prosecutor should be entitled to withdraw the charge until the pronouncement of the sentence.
"2. The court was to be instructed to give the prosecutor another chance to give his point of view, in case their view should diverge from his."
Freisler further states:
"In fulfillment of my promise I deemed it necessary to inform you of this, dear Sir, as these facts were not permitted to be recorded in the files and are probably unknown in the department."
By his supplemental directive of 28 October 1942, Thierack made note of the fact that the "jurisdiction of the People's Court (No. 1, 1 and 2 of the additional circular directives of the 14th of October 1942)" had been extended to NN cases.
Thierack's letter, dated 25 October 1942 to defendant Lautz, copy to von Ammon, established and expanded jurisdiction of the People's Court over NN cases.
Thereafter the People's Court handled many Night and Fog cases, convicting the accused in secret sessions with no records whatsoever made of any evidence adduced and no record was made of the sentence pronounced. The defendant von Ammon testified that about one-half of the Night and Fog prisoners tried by the People's Court were executed.
Later NN cases were sent to the Special Court at Hamm, to German Special Courts at Breslau and Kattowice, Poland, and to Silesia and other places as will be later shown herein.
Concentration Camps The use of concentration camps for NN prisoners was shown by a letter dated 18 August 1942, signed by Gluecks, SS Brigadefuehrer and General-Major of the SS, which contained enclosures for information and execution by officials in charge of concentration camps, including Mauthausen, Auschwitz, Flossenbuerg, Dachau, Ravensbruck, Buchenwald, and numerous others.
The letter states that such prisoners will be transferred under the Keitel decree from the occupied countries to Germany for transfer to special courts. Should that for any reason be impossible, the accused will be put into one of the above-named concentration camps. Those in charge of the camps were instructed that absolute secrecy of such prisoners' detention was to be maintained including the prevention of any means of communication with the outside world either before or after the trial.
The following is illustrative of inhumane prison conditions for NN prisoners.
The affidavit of Ludwig Schirmer, warden in the prison at Ebrach, confirmed by his oral testimony, states:
"The Erbach prison which was used for criminal convicts had a capacity of 595 prisoners. In 1944, however, the prison became overcrowded and finally held a maximum of from 1,400 to 1,600 prisoners in 1945.
"This crowding had been caused by numerous NN prisoners from France and Belgium. Among them was the French General Vaillant who died in the prison of old age and of a heart disease. Owing to the overcrowding of the penitentiary, it was impossible to avoid the frequent outbreak of diseases, such as pulmonary tuberculosis, consumption and, of course, many cases of undernourishment. The very poor medical care was a serious disadvantage; the doctor showed up only two or three times a week. Sixty-two inmates died during the last months of the war. Many of them, of course, came in already sick. During the last months, a criminal convict was employed as physician. He was a morphinomaniac and a man of very low character.
"Although there were stocks of food at hand, the feeding of prisoners was bad; people got only soup and turnips for weeks. NN prisoners were crowded together, four in a single cell. From time to time a certain number of the prisoners was transferred to the concentration camp."
The affidavit of Joseph Prey, head guard at the Amberg prison, confirmed by his oral testimony, states that foreigners, Jews and NN prisoners at Amberg prison, which had a capacity of 900 to 1,100 were incarcerated there. Yet shortly before the collapse there were 2,000 prisoners, of whom 800 to 900 prisoners were Polish, and NN prisoners who included Frenchmen, Dutchmen, and Belgians. From time to time by secret decree prisoners were transferred to the concentration camp at Mauthausen. Defendant Engert, the official representative of the Department of Justice, visited and officially and inspected the prison and knew of these conditions.
By his affidavit Engert states that Thierack told him the Night and Fog prisoners had to be treated with special are caution, not allowed any correspondence, locked up hermitically from the outer world, and that care should be taken that their real names remain unknown to the lower prison personnel. Engert further states that these orders were the result of the Fuehrer Decree of 7 December 1941 and that Thierack told him the Night and Fog prisoners were accused of resistance and violence against the armed forces. He did not know what became of these NN prisoners at the various prison camps. He did know that an agreement existed with the Gestapo that the bodies of Night and Fog prisoners should be given to them for secret burial. It was shown by other testimony that defendant Engert was Ministerial Director; who handled and investigated the Night and Fog prisoners and that he was in charge of the task of transferring prisoners and knew their nationality and the character of crime charged against them.
On 14 June 1944 defendant von Ammon wrote Bormann, Chief of the Party Chancellery, a letter sent by way of defendant Mettgenberg, requesting permission of the Fuehrer to inform NN women held under death sentence of the fact that such sentence has been reprieved; since he considers it to be unnecessarily cruel to keep these "condemned women" in suspense for years as to whether their death sentence will be carried out.
Mrs. Solf, the widow of a former distinguished German cabinet officer and ambassador, testified that she was tried and held as a political prisoner of the Nazi regime for several years in Ravensbruck concentration camp and other prisons where a large number of foreign women were imprisoned. Concerning the ill treatment of these women and the prison conditions under which they were incarcerated, Mrs. Solf testified:
"As to the prisoners who were with me at Ravensbruck, as far as I can remember there was only an Italian woman of Belgian descent who was treated well, better than we were. However; in the penitentiary of Cottbus, as well as in the prison of Moabit, I met many foreigners. In the penitentiary of Cottbus; there alone were 300 French women who were sentenced to death, and five Dutch women sentenced to death who, after a week or two, were pardoned to penitentiary terms and who I saw in the courtyard. The 300 French women sentenced to death were sent to Ravensbruck at the end of November 1944. The night before they were transported they had to sleep on a bare stone floor. One of the auxilliary wardens, who was also an interpreter for them and who had a great deal of courage and a kind heart, came to me in order to ask us political prisoners to give them our blankets, which we certainly did."
She further testified:
"I know and have seen for myself that, for instance, in Moabit, some of the brutal wardens kicked them and shouted at them for reasons which seemed very, very unjust because these women did not understand what they were supposed to do."
The Night and Fog Decree was from time to time implemented by several plans or schemes, which were enforced by the defendants. One plan or scheme was the transfer of alleged resistance prisoners, or persons from occupied territories who had served their sentences or had been acquitted to concentration camps in Germany where they were held incommunicado and were never heard from again. Another scheme was the transfer of the inhabitants of occupied territories to concentration camps in Germany as a substitute for a court trial. Defendant Engert, as Vice President of one division of the People's Court, made such an order.
Trials Under NN Decree The evidence establishes beyond a reasonable doubt that in the execution of the Hitler NN decree the Nazi regime's Ministry of Justice, special courts, and public prosecutors agreed to and acted together with the OKW and Gestapo in causing to be arrested, transported to Germany, tried, sentenced to death and executed, or imprisoned under the most cruel and inhumane conditions in prisons and concentration camps, thousands of the civilian population of the countries overrun and occupied by the Nazi regime's military forces during the prosecution of its criminal and aggressive war.
The trials of the accused NN persons did not approach even a semblance of fair trial or justice. The accussed NN persons were arrested and secretly transported to Germany and other countries for trial. They were held incommunicado. In many instances they were denied the right to introduce evidence, to be confronted by witnesses against them, or to present witnesses in their own behalf. They were tried secretly and denied the right of counsel of their own choice, and usually denied the aid of any counsel. No indictment was served in many instances and the accused learned only a few moments before the trial of the nature of the alleged crime for which he was to be tried. The entire proceedings from beginning to end were secret and no record was allowed to be made of them. These facts arc proved by captured documents and evidence adduced on the trial, to some of which we now advert.
The first trial of NN cases took place at Essen. A letter from the prosecutor, dated 20 August 1942, addressed to the Reich Minister of Justice, was received on 27 August 1942, states that five defendants were to be tried and that two of them were to get prison terms and that "in the remaining cases the death sentence is to be ordered and inquiries made whether they should be executed by the guillotine."
These sentences were later pronounced.
In response to several inquiries from prosecutors at Special Courts in Hamm, Kiel, and Cologne citing pending NN cases, the defendants Mettgenberg and von Ammon replied that inview of the regulation for the keeping of NN trials absolutely secret defense counsel chosen by NN defendants would not be permitted.
In these same inquiries, it is stated that if defense counsel were carefully selected from those who were recognized as unconditionally reliable, pro-State and judicially efficient lawyers, no difficulty should arise with respect to the secrecy of such proceedings. It is suggested that if an attorney should inquire concerning representation of an NN defendant, he should be informed that it is not permissible to investigate whether or not there was any proceeding pending against the accused. This inquiry related to 16 NN French defendants who were to be tried at Cologne. Other evidence introduced in the case showed that this practice was followed.
The Foreign Countries Department of the Wehrmacht High Command reported to defendant von Ammon on 15 October 1942 a list of 224 alleged spies arrested in France in the execution of what was known as "Action Porto", of whom 220 had already been transported to Germany. Inquiry was made whether these prisoners should be regarded as coming under Hitler's NN Decree. A later directive issued 6 March 1943, which was initialed by defendant Mettgenberg and sent to the SS Chief Himmler, states that orders and regulations covering NN prisoners in general will be applied to Porto Action groups. The circular decree states further that in case of death of Porto Action prisoners, the same procedure is followed with respect to secrecy as is followed in NN cases, and that the estates of Porto Action prisoners are to be retained by the penal institution for the time being, and that relatives are not to be informed about the death of such prisoners, especially not of their execution.
A letter dated 9 February 1943, Berlin, to the President of the People's Court, Chief Public Prosecutor at Kiel and Cologne and Chief Public Prosecutor at Hamm, states that for the purpose of carrying out the Night and Fog decree or directive:
"In trials (before the Landesgericht), in which according to the regulations, defense counsel has to be provided for the defendant, the regulation may be ignored when the president of the court can conscientiously state that the character of the accused and the nature of the charge make the presence of a defense counsel superfluous."
In connection with the foregoing matter, a secret note to defendant von Ammon, dated 18 January 1941, suggests that a regulation concerning counsel for NN prisoners should be drafted. A letter dated 4 January 1943 states that in accordance with the power granted under the Fuehrer's order of 7 December 1941:
"Article IV, paragraph 32 of the Competence Decree of 21 February 1940 (relating to appointment of defense counsel) is cancelled. The President of the Court will order defendant to be represented only if he is unable to defend himself or for any special reason it seems desirable that defendant should be represented."
A letter dated 21 April 1943, Berlin, by Thierack, Minister of Justice, states that "Your ordinance of 21 December 1942 decreed that in criminal cases concerning criminal actions against the Reich and the occupation authority in the occupied territories, defense counsel of one's own choice should not be approved of on principle."
A letter by Thierack to the President of the People's Court, Berlin, dated 13 May 1943, states that "The directives given by the Fuehrer on 7 December 1941 for the prosecution of criminal actions committed against the Reich or the occupation authorities in the occupied territories are applicable, according to their meaning and their tenor, to foreigners only, and not to German nationals or provisional Germans."
A Draft of an extensive secret order or directive of the Reich Minister of Justice, dated 6 March 1943, covering secret NN procedure was sent to and initialed by or for heads of Ministry Divisions III and IV (the defendants Mettgenberg and von Ammon), Division V (headed by defendant Engert), and Division VI (headed by defendant Altstoetter). The directive instructed all so concerned to take further measures "in order not to endanger necessary top secrecy of NN procedure". Separate copies of this order, dated 8 March 1943, were sent to the aforementioned Ministry Divisions, including Division VI, headed by defendant Altstoetter, who admits having seen and executed the directive, to defendant von Ammon and to, among others, the Chief Reich Prosecutor at the People's Court (defendant Lautz), the Attorneys General in Celle, Duesseldorf, Frankfurt on Main, Hamburg, Hamm, Kiel, and Cologne and the Attorney General at the Prussian Court of Appeal and for the attention of Presidents of the People's Court, District Courts of Appeal of Hamm, Kiel, and Cologne, and the Prussian Court of Appeals at Berlin. Among the measures of secrecy included in the order or directive were the following:
"The cards not used for investigations for the Reich criminal statistics need not be filled in. Likewise, notification of the penal records office will be discontinued until further notice. However, sentences will have to be registered in lists or on a card index in order to make possible an entry into the penal records in due course.
"In case of death, especially in cases of execution of NN prisoners, as well as in cases of female NN prisoners giving birth to a child, the registrar must be notified as prescribed by law. However, the following remark has to be added:
'By order of the Reich Minister of the Interior, the entry into the death (birth) registry must bear an endorsement, saying that examination of the papers, furnishing of information and of certified copies of death (birth) certificates is only admissible with the consent of the Reich Minister of Justice.'" Division VI headed by defendant Altstoetter handled matters relating to registration of deaths and births.
The order further provides:
"Farewell letters by NN prisoners as well as other letters must not be mailed. They have to be forwarded to the prosecution who will keep them until further notice.
"If an NN prisoner who has been sentenced to death and informed of the forthcoming execution of the death sentence desires spiritual assistance by the prison padre, this will be granted.
It necessary, the padre must be sworn to secrecy.
"The relatives will not be informed of the death and especially of the execution of an NN prisoner. The press will not be informed of the execution of a death sentence, nor must the execution of a death sentence be publicly announced by posters.
"The bodies of executed NN prisoners or prisoners who died from other causes have to be turned over to the State Police for burial.