But that can also be done in a different way and I think in a more advantageous one, than through the tedious and also very expensive and ponderous channels of court procedure. I have therefore no objection whatsoever, if all the small-hangers-on who are somehow connected with the high treason plans which have been woven by others, are brought to their senses by being transferred to a concentration camp for some time."
As early as 29 January 1941 the senior public prosecutor at Hamm wrote to the Reich Minister of Justice, for the attention of State Secretary Schlegelberger:
"Upon inquiry; the Reich trustees for labor for the economic territory of Westphalia-Lower Rhine has informed me that 'in accordance with an agreement between the Reich Minister for Labor and the Reichsfuehrer SS as Chief of the German Police; breach of work contracts by Poles are to be punished by the Secret State Police with protective custody or concentration camps. The meaning of this step' - so writes this Reich trustee --' is that in the case of Poles the strictest measures are to be taken at once * * *.' For this reason we made it a point in my office to transfer the cases involving breach of work contract by Polish civilian workers, to the Gestapo (Secret State Police ) for further action."
The same letter informs the defendant Schlegelberger of uncertainty which has arisen in the treatment of Polish civilians because in some cases the courts would sentence to two or three years imprisonment while the State Police may pronounce the death sentence for the same crime.
While the part played by the Ministry of Justice in the extermination of Poles and Jews was small compared to the mass extermination of millions by the SS and Gestapo in concentration camps, nevertheless the courts contributed greatly to the "final solution" of the problem.
From a secret report from the office of the Reich Minister of Justice to the judges and prosecutors, including the defendant Lautz, it appears that 189 persons were sentenced under the law for the protection of German blood and honor in 1941, and 109 in 1942. In the year 1942, 61, 835 persons were convicted under the law against Poles and Jews. This figure includes persons convicted in the incorporated Eastern territories, and also convictions for crimes committed in "other districts of the German Reich by Jews and Poles who on 1 September 1939 had their residence or permanent place of abode in territory of the former Polish State". These figures, of course, do not include any cases in which Jews were convicted of other crimes in which the law of 4 December 1941 was not involved.
The defendants contend that they were unaware of the atrocities committed by the Gestapo and in concentration camps. This contention is subject to serious question. Dr. Behl testified that he considered it impossible that anyone, particularly in Berlin, should have been ignorant of the brutalities of the SS and the Gestapo. He said: "In Berlin it would have been hardly possible for anybody not to know about it, and certainly not for anybody who was a lawyer and who dealt with the administration of justice." He testified specifically that he could not imagine that any person in the Ministry of Justice or in the Party Chancellery or as a practicing attorney or a judge of a special (or) People's Court could be in ignorance of the facts of common knowledge concerning the treatment of prisoners in concentration camps. It has been repeatedly urged by and in behalf of various defendants that they remained in the Ministry of Justice because they feared that if they should retire, control of the matters pertaining to the Ministry of Justice would be transferred to Himmler and the Gestapo. In short, they claim that they were withstanding the evil encroachments of Himmler upon the Justice Administration, and yet we are asked to believe that they were ignorant of the character of the forces which they say they were opposing.
We concur in the finding of the first Tribunal in the case of United States et al. vs. Goering, et al., concerning the use of concentration camps. We quote:
"Their original purpose was to imprison without trial all those persons who were opposed to the Government, or who were in any way obnoxious to German authority. With the aid of a secret police force, this practice was widely extended, and in course of time concentration camps became places or organized and systematic murder, where millions of people were destroyed. * * * "A certain number of the concentration camps were equipped with gas chambers for the wholesale destruction of the inmates , and with furnaces for the burning of the bodies.
Some of them were in fact used for the extermination of Jews as part of the 'final solution' of the Jewish problem. * * * "In Poland and the Soviet Union these crimes were part of a plan to get rid of whole native populations by expulsion and annihilation, in order that their territory could be used for colonization by Germans.
Hitler had written in 'Mein Kampf' on these lines, and the plan was clearly stated by Himmler in July 1942, when he wrote:
'It is not our task to Germanize the East in the old sense, that is, to teach the people there the German language and the German law, but to see to it that only people of purely Germanic blood live in the East." (IMT Judgment, pages 234, 237).
A large proportion of all of the Jews in Germany were transported to the East. Millions of persons disappeared from Germany and the occupied territory without a trace. They were herded into concentration camps within and without Germany. Thousands of soldiers and members of the Gestapo and SS must have been instrumental in the processes of deportation, torture, and extermination. The mere task of disposal of mountainous piles of corpses, (evidence of which we have seen), became a serious problem and the subject of disagreement between the various organizations involved.
The thousands of Germans who took part in the atrocities must have returned from time to time to their homes in the Reich. The atrocities were of a magnitude unprecedented in the history of the world. Are we to believe that no whisper reached the ears of the public or of those officials who were most concerned? Did the defendants think that the nation-wide pogrom of November 1938, officially directed from Berlin, and Hitler's announcement to the Reichstag threatening the obliteration of the Jewish race in Europe were unrelated? At least they cannot plead ignorance concerning the decrees which were published in their official organ"The Reichsgesetzblatt". Therefore, they knew that Jews were to be punished by the police in Germany and in Bohemia and Moravia. They knew that the property of Jews was confiscated on death of the owner. They knew that the law against Poles and Jews had been extended to occupied territories and they knew that the Chief of the Security Police was the official authorized to determine whether or not Jewish property was subject to confiscation . They could hardly Court No. III, Case No. III.
be ignorant of the fact that the infamous law against Poles and Jews of 4 December 1941 directed the Reich Minister of Justice himself, together with the Minister of the Interior, to issue legal and administrative regulations for "implementation of the decree". They read "The Stuermer". They listened to the radio. They received and sent directives. They heard and delivered lectures. This Tribunal is not so gullible as to believe these defendants so stupid that they did not know what was going on. One man can keep a secret, two men may, but thousands never.
The evidence conclusively establishes the adoption and applica tion of systematic governmentally-organized and approved procedures amounting to atrocities and offenses of the kind made punishable by C.C. Law 10 and committed against "populations" and amounting to persecution on racial grounds. These procedures when carried out in occupied territory constituted war crimes and crimes against humanity. When constituted war crimes and crimes against humanity. When enforced in the Alt Reich against German nationals they constituted crimes against humanity.
The pattern and plan of racial persecution has been made clear General knowledge of the broad outlines thereof, in all its immensity, hits been brought home to the defendants. The remaining question is whether or not the evidence proves beyond a reasonable doubt in the case of the individual defendants that they each consciously participated in the plan or took a consenting part therein.
When the Tribunal recesses, gentlemen, in a few moments, we will recess to convene and continue with the reading of the Opinion tomorrow morning at the usual hour, 9:30. On tomorrow the Tribunal will also make certain minor corrections in the written record relating to pagination and certain other matters; and we will also call attention to the fact that in the course of the reading today there have inadvertently in a few occasions been mistakes in the reading of the dates of certain specified events. The dates are specified correctly Court No. III, Case No. III.
in the text which we have read, but in a few instances were incorrectly read through inadvertence. Those matters will be corrected and of course the written text will control and not the inadvertent mistakes as to date which was stated in reading.
We will recess until tomorrow morning at 9:30.
(The Tribunal adjourned until 0930 hours, 4 December 1947.)
Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 4 December 1947, 0930-1800, the Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honor, all defendants are present in the Courtroom with the exception of Schlegelberger and Klemm who one absent due to illness.
THE PRESIDENT: Is it the desire of counsel for defendant Schlegelberger that he be excused from attendance upon the Tribunal for the period of this day?
DR. GRUBE: (For Dr. Kubuschok for the defendant Schlegelberger):
I was asked to request that the defendant Schlegelberger be excused from attendance today.
THE PRESIDENT: Schlegelberger is excused. Is the same request made for the defendant Klemm? Dr. Schilf indicates the same request is made for the defendant Klemm. Both of them will be excused for the period of this day. The proper notation will be made. Judge Blair will continue reading the opinion of the court.
JUDGE BLAIR: Judge Blair continuing reading the opinion of the Court.
The Defendant Schlegelberger The defendant Franz Schlegelberger was born on 23 October 1875 in Koenigsberg.
He received the degree of Doctor of Law at the University of Leipzig in 1899 and passed the higher State Law examination in 1901. He is the author of several law books. His first employment was as an assistant judge at the Local Count in Koenigsberg. In 1904 he became judge at the District Court at Lyck. In 1908 he was appointed judge of the Local Court in Berlin and in the fall of the same year was appointed as an assistant judge of the Berlin Court of Appeals.
He was then appointed Councillor of the Berlin Court of Appeals in 1914, where he worked until 1918. During the first World War, on 1 April 1918 he became an assistant to the Reich Board of Justice. On 1 October 1918 he was appointed Privy Government Councillor and department chief. In 1927 he was appointed Ministerial Director in the Reich Ministry of Justice. On 10 October 1931 he was appointed Secretary of State in the Reich Ministry of Justice under Minister of Justice Guertner, which position he held until Guertner's death. Upon Guertner's death on 29 January 1941 Schlegelberger was put in charge of the Reich Ministry of Justice as Administrative Secretary of State. When Thierack became the new Minister of Justice on 20 August 1942, Schlegelberger resigned from the Ministry.
In 1938 Hitler ordered Schlegelberger to join the NSDAP. Schlegelberger testified that he made no use of the Party, that he never attended a Party meeting, that none of his family belonged to the Party, and that Party attitudes often rendered his position difficult. However, upon his retirement as Acting Minister of Justice on 20 August 1942, Schlegelberger received a letter of appreciation from Hitler together with a gift of 100,000 RM.
Later, in 1944, Hitler gave Schlegelberger the special privilege to use the 100,000 RM to purchase a farm, which under the rule then prevailing could have been purchased only by an expert agriculturist. Schlegelberger states that the 100,000 RM were on deposit in a Berlin German bank to his account when the collapse came. Thus it is shown that Hitler and Schlegelberger were not too objectionable to each other. These transactions also show that Hitler was at least attempting to reward Schlegelberger for good and faithful service rendered, in the performance of some of which Schlegelberger committed both war crimes and crimes against humanity as charged in the indictment.
We have already adverted to his speech at the University of Rostock on 10 March 1936, on the subject "A Nation Beholds Its Rightful Law". In this speech Schlegelberger declared:
"In the sphere of criminal law the road to a creation of justice in harmony with the moral concepts of the New Reich has been opened up by a new wording of Section 2 of the Criminal Code, whereby a person is also (to) be punished even if his deed is not punishable according to the law, but if he deserves punishment in accordance with the basic concepts of criminal law and the sound instincts of the people. This new definition became necessary because of the rigidity of the norm in force hitherto."
As amended, Section 2 remained in effect until repealed by Law No. 11 of the Allied Control Council. The term "the sound people's sentiment" as used in amended Section 2 has been the subject of much discussion and difference of view as to both its proper translation and interpretation. We regard the statute as furnishing no objective standards "by which the people's sound sentiment may be measured." In application and in fact this expression became the "healthy instincts" of Hitler and his co-conspirators.
What has been said with regard to the amendment to Section 2 of the Criminal Code is equally true of the amendment of Section 170 a of the Code by the decree of Hitler of 28 June 1935, which is also signed by Minister Guertner and which provides:
"If an act deserves punishment according to the common sense of the people but is not declared punishable in the Code, the prosecution must investigate whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by the proper application of this penal law." (RGBL. I, page 844).
This new conception of criminal law was a definite encroachment upon the rights of the individual citizen because it subjected him to the arbitrary opinion of the judge as to what constituted an offense. It destroyed the feeling of legal security and created an atmosphere of terrorism.
This principle of treating crimes by analogy provided an expedient instrumentality for the enforcement of Nazi principles in the occupied countries. German criminal law was therefore introduced in the incorporated areas and also in the nonincorporated territories, and German criminal law was thereafter applied by German courts in the trial of inhabitants of occupied countries through the inhabitants of those countries could have no possible conception of the acts which would constitute criminal offenses.
In the earlier portions of this opinion we have repeatedly referred to the actions of the defendant Schlegelberger. Repetition would serve no good purpose. By way of summary we may say that Schlegelberger supported the pretension of Hitler in his assumption of power to deal with life and death in disregard of even the pretense of judicial process. By his exhortations and directives, Schlegelberger contributed to the destruction of judicial independence. It was his signature on the decree of 7 February 1942 which imposed upon the Ministry of Justice and the courts the burden of the prosecution, trial, and disposal of the victims of Hitlers Night and Fog. For this he must be charged with primary responsibility.
He was guilty of instituting and supporting procedures for the wholesale persecution of Jews and Poles. Concerning Jews, his ideas were less brutal than those of his associates, but they can scarcely be called humane. When the "final solution of the Jewish question" was under discussion, the question arose as to the disposition of halfJews. The deportation of full Jews to the East was then in full swing throughout Germany.
Schlegelberger was unwilling to extend the system to half-Jews. He therefore proposed to Reich Minister Lammers, by secret letter on 5 April 1942:
"The measures for the final solution of the Jewish question should extend only to full Jews and descendants of mixed marriages of the first degree, but should not apply to descendants of mixed marriages of the second degree.
(Ed. note: first degree presumably those with two-non-Aryan grandparents and second degree with only one).
"With regard to the treatment of Jewish descendants of mixed marriages of the first degree, I agree with the conception of the Reich Minister of the Interior which he expressed in his letter of 16 February 1942, to the effect that the prevention of propagation of these descendants of mixed marriages is to be preferred to their being thrown in with the Jews and evacuated. It follows therefrom that the evacuation of those half-Jews who are no more capable of propagation is obviated from the beginning. There is no national interest in dissolving the marriages between such half-Jews and a full-blooded German.
"Those half-Jews who are capable of propagation should be given the choice to submit to sterilization or to be evacuated in the same manner as Jews."
Schlegelberger knew of the pending procedures for the evacuation of Jews and acquiesced in them. As to half-Jews his only suggestion was that they be given the free choice of either one of the impaling horns of a dilemma. On 17 April 1941 Schlegelberger wrote to Lammers as follows:
"On being informed of the Fuehrer's intention to discriminate in the sphere of penal law between the Poles (and probably the Jews as well), and the Germans, I prepared, after preliminary discussions with the presidents of the courts of appeal and the attorney-generals of the annexed Eastern territories, the attached draft concerning the administration of the penal laws against Poles and Jews in the annexed Eastern territories and in the territory of the former Free City of Danzig."
The draft of a proposed ordinance "concerning the administration of justice regarding Poles and Jews in the incorporated Eastern territories" was attached to his letter and is in evidence.
A comparison of its phraseology with the phraseology contained in the notorious law against Poles and Jews of 4 December 1941 discloses beyond question that Schlegelberger's draft constituted the basis on which, with certain modifications and changes, the law against Poles and Jews was enacted.
In this respect he was not only guilty of participation in the racial persecution of Poles and Jews; he was also guilty of violation of the laws and customs of war by establishing that legislation in the occupied territories of the East. The extension of this type of law into occupied territories was in direct violation of the limitations imposed by The Hague Convention, which we have previously cited.
It is of interest to note that on 31 January 1942 Schlegelberger issued a decree providing that the provisions of the law against Poles and Jews "will be equally applicable with the consent of the public prosecutor to offenses committed before the decree came into force." We doubt if the defendant would contend that the extension of this discriminatory and retroactive law into occupied territory was based on military necessity.
Schlegelberger divorced his inclinations from his conduct. He disapproved "of the revision of sentences" by the police, yet he personally ordered the murder of the Jew Luftgas on the request of Hitler, and assured the Fuehrer that he would himself take action if the Fuehrer would inform him of other sentences which were disapproved.
Schlegelberger's attitude toward atrocities committed by the police must be inferred from his conduct. A milking-hand, Bloedling, was sentenced to death in October 1940, and during the trial he insisted his purported confession had been obtained as a result of beatings imposed upon him by the police officer Klinzmann. A courageous judge tried Klinzmann and convicted him of brutality and sentenced him to a few months imprisonment. Himmler protected against the sentence of Klinzmann and stated that he was going "to take the action of the Hauptwachtmeister of the Police Klinzmann as an occasion to express gratitude for his farsighted conduct which was only beneficial to the communit". He said further:
"I must reward his action because otherwise the joy of serving in the police would be destroyed by such verdicts. But finally K has to be destroyed by such verdicts.
But finally K has to be rehabilitated in public because his being sentenced by a court is known in public."
On 10 December 1941 Schlegelberger wrote to the Chief of the Reich Chancellery stating that he was unable to understand the sentence passed against Klinzmann. He quote:
"No sooner had the verdict passed on Klinzmann become known here, orders were for this reason given to the effect that the sentence, in case of it validation, should not be carried out for the time being. Instead, reports concerning the granting of a pardon should be made as soon as possible. In the meantime, however, the sentence passed on Klinzmann became valid, by decision of the Reich Court of 24 November 1941, which abandoned the procedure of revision as apparently unfounded. Taking into regard also the opinion you expressed on the sentence, Sir, I now ordered the remission of the sentence and of the costs of proceedings by way of pardon as well as the striking out of the penalty note in the criminal records."
On 24 December 1941 Schlegelberger wrote to Lammers that he had quashed the proceedings. In February 1942 Himmler wrote expressing appreciation of the efforts in quashing the proceedings against Klinzmann and stated that he had since promoted him to Meister of the Municipal Police.
Schlegelberger presents an interesting defense, which is also claimed in some measure by most of the defendants. He asserts that the administration of justice was under persistent assault by Himmler and other advocates of the police state. This is true. He contends that if the functions of the administration of justice were usurped by the lawless forces under Hitler and Himmler the last state of the nation would be worse than the first. He feared that if he were to resign, a worse man would take his place. As the event proved, there is much truth in this also. Under Thierack the police did usurp the functions of the administration of justice and murdered untold thousands of Jews and political prisoners. Upon analysis this plausible claim of the defense squares neither with the truth, logic or the circumstances.
The evidence conclusively shows that in order to maintain the Ministry of Justice in the good graces of Hitler and to prevent its utter defeat by Himmler's police, Schlegelberger and the other defendants who joined in this claim of justification took over the dirty work which the leaders of the State demanded, and employed the Ministry of Justice as a means for exterminating the Jewish and Polish populations, terrorizing the inhabitants of occupied countries, and wiping out political opposition at home.
That their program of racial extermination under the guise of law failed to attain the proportions which were reached by the pogroms, deportations, and mass murders by the police, is cold comfort to the survivors of the "judicial" process and constitutes a poor excuse before this Tribunal. The prostitution of a judicial system for the accomplishment of criminal ends involves an element of evil to the State which is not found in frank atrocities which do not sully judicial robes.
Schlegelberger resigned. The cruelties of the system which he had helped to develop were too much for him, but he resigned too late. The damage was done. If the judiciary could slay their thousands, why couldn't the police slay their tons of thousands? The consequences which Schlegelberger feared were realized. The police, aided by Thierack, prevailed. Schlegelberger had failed. His hesitant injustices no longer satisfied the urgent demands of the hour. He retired under fire. In spite of all that he had done he still bore an unmerited reputation as the last of the German jurists and so Hitler gave him his blessing and 100,000 RM as a parting gift. We are under no misapprehension. Schlegelberger is a tragic character. He loved the life of intellect, the work of the scholar. We believe that he loathed the evil that he did, but he sold that intellect and that scholarship to Hitler for a mess of political pottage and for the vain hope of personal security. He is guilty under Counts two and three of the indictment.
JUDGE HARDING: Judge Harding continues reading the opinion.
that time Chief.
He received the Bronze Party Service decoration in 1941 and the Golden Party decoration, the latter being conferred by Bormann in 1943.
During the time in which the defendant was in Saxony, he was a member of the disciplinary court of the SA group which dealt with the purge of the SA in connection with the Roehm putsch.
A brief outline of the official activities of the defendant Klemm is as follows: after transfer to Berlin in 1935, the defendant dealt with acts against the State and Party and, later, the Malicious Acts Law. In this field prosecution could be ordered only by the Ministry of Justice with the permission of the office of the Deputy of the Fuehrer, which later became the Party Chancellory.
It was during this period that the following circular, dated Berlin, 18 October 1937, and initialed by Klemm, was issued:
"1) Criminal procedure concerning more severe interrogations by the Stapo will be dealt with centrally by Chief Prosecutor Klemm. They are to be sent to the competent co-worker Prosecutor Winkler.
"2) As far as reports concerning executions when escaping from concentration camps, etc., suicides in K.Z. arrive, they shall continue to be dealt with by the specialist competent for the respective subject. The general consultant for political criminal matters, however, is to be informed of the reports. They are to be submitted to him at once."
The practice of more severe interrogations, according to the testimony of Lautz, caused much worry to those concerned with the administration of justice. By the term "more severe interrogations" is meant "third degree" methods which Hitler authorized the police to use in cases considered important for the safety of the State.
From July 1940 to March 1941, while Klemm was in Holland, he had charge of both civil and penal law. The penal section in Holland was for Germans citizens not in the army and Dutch who infringed on German interests. He was also liaison officer between the Commissioner General for the administration of Justice and Secretary of the Dutch Ministry of Justice at the Hague.
During this period there were published in the official gazette for the occupied Dutch Territories, in the year 1944, decrees of the Reich Commissioner of Occupied Dutch Territories, Seyss-Inquart, pertaining to the registry of Jewish property, the confiscation of same under certain circumstances, and for the transfer of Jewish property to an official in the nature of an administrator. During this time a letter was written by Tenkink, Secretary General of the Dutch Ministry of Justice, to the Reich Commissioner of Holland, which shows the defendant's signature, informing the Commissioner of excesses committed against Jews in Holland.
During this period letters dated 24 and 30 September 1940, marked "Secret" and signed by the defendant, to the Department for Legislation Lange Vijverberg, with opinions and recommendations as to the registration and confiscation of Jewish property in Holland, were transmitted.
A letter dated 24 September 1940 contains the following statement:
"In my view it must be achieved with other means to eliminate Jewish influence from such corporations. In the Reich, too, it needed months of careful work to gradually extract Jewish capital without disturbing the economy or to eliminate Jewish influence altogether."
The defendant Klemm was in the office of the Deputy of the Fuehrer and Party Chancellery from March 1941 to January 1944. The Party Chancellery had to approve the drafts of decrees in connection with national laws and ordinances and also was charged with the responsibility for the approval of high official appointments. The Party Chancellery was formed from what had originally been the office of the Deputy Fuehrer under Hess. It was the instrument of the Party in matters of State and soon became virtually the instrument of Bormann.
In the Party Chancellery Klemm was Chief of Group III-C.
This Group had the following functions, as stated by the defendant:
"First, it had to deal with laws and drafts and decrees of the Reich Ministry of Justice, unless for reasons of their subject, they were dealt with by another group, because that group appeared to be competent. Secondly, penal matters based on the law against malicious acts, as far as on the basis of legal provisions the approval of the Chief of the Party Chancellery was required for the prosecution. Thirdly, complaints from Party offices or individuals against decision by the courts. Fourth, complaints from the administration of justice against interference by Party offices into pending trials. Fifth, to observe especially civil and penal cases which concerned the Party. Sixth, matters of legal reform, and seventh, expert opinions in the field of the Party law."
Among his activities, and in conference with officials from the Ministry of Justice, he made suggestions for strengthening the powers of the police.
At another conference with officials from the Ministry of Justice concerning the political evaluations of persons in connection with legal procedure, he represented the standpoint of the Party that Party evaluations should be accepted by the courts.
During the time that Klemm was Chief of Section III-C, the act providing for the retroactive application of law concerning treason was enacted and applied to the annexed Eastern territories. It was claimed by the defendant that this was based upon a decision of Bormann.
At that time legislation depriving the Jews of legal rights was also contemplated of the proposals made were dealt with, and the letter of 9 September 1942, prepared in Division III, was dispatched.
Also as part of the activities of Section III-C under Klemm, the proposal of the defendant Schlegelberger regarding confirmation of sentences of penal cases by the President of the District Court of Appeals was disposed of and the defendant claims he influenced Bormann to oppose this recommendation of the Ministry of Justice.
During this period a circular entitled "The New Organization of Justice", signed by Bormann, and which the defendant Klemm claims was intended the Ministry of Justice from Party criticism, states as follows:
"Hereby is further required that you report to me all complaints which you have to bring in matters of justice, so that I can clear up the situation immediately by confidential negotiations with the Reich Minister of Justice. Should it, after a discussion with the Reich Minister of Justice, seem absolutely necessary that a problem is brought to the Fuehrer, then this will be taken care of by Reich Minister Dr. Lammers and myself."
During this period Klemm wrote the Minister of Justice as follows:
"Your letter of 5 August 1943 is agreed to. No objections are raised to applying the German Criminal Code for Juveniles to foreign juveniles, unless they are Jewish, Polish, and gypsies. Regarding juvenile gypsies and those of mixed gypsy descent, you are asked to see to that, simultaneously with the coming into force of the new law concerning Reich juveniles, a special regulation will come into effect which will prevent the German Criminal Code for juveniles from applying to gypsies and those of gypsy descent merely because a definite regulation is lacking."
The defendant states that during this period Bormann called him on the telephone and inquired whether he knew Rothenberger and inquired about Rothenberger. Also he later submitted to the defendant Klemm an inquiry as to the background and qualifications of persons presumed to have been possible appointees as Reich Minister of Justice. These included Thierack, and Klemm states that his report to Bormann was favorable to Thierack. These inquiries were made of the defendant in spite of the fact that, according to his testimony, he had to deal only with matters pertaining to the administration of justice, and these were definitely personnel matters under another department of the Party Chancellery.
During this period he was the liaison officer between Thierack and the Party Chancellery. As to this relationship, Klemm states:
"Thierack asked mo in all matters concerning the Justice group of the Party Chancellory to come to him and that is, to him personally, immediately and not to discuss them with the various Referents at the Ministry * * * and as I had worked in both fields, the best thing for him to get acquainted with the matter would be if I reported to him in person."
With reference to Klemm's duties as Under-Secretary of State, the following paragraph of a report of the conference of the Department Chiefs, held 6 January 1944, outlines in part his duties in the Ministry as follows:
"The Minister announced that from now on the Departments III, IV and V, too, would be placed under the control of the State Secretary and hereby recalled the contrary regulation in office routine, which was published on 27 August, 1942, but added that all death sentences must continue to be submitted to him. He would request the State Secretary to be present when they were submitted. Furthermore, all political and legal matters of particular importance must be reported to him."
Klemm maintains that his supervision cf Departments III, IV, and V, was merely on paper. However, the testimony of Hecker does not bear this out as regards Department V, nor does the testimony of Eggensberger.
During this period the decree against Poles and Jews was still being enforced under the jurisdiction of the Ministry of Justice in so far as any was left, outside the sphere of the Gestapo and the concentration camps.
During this period the Ministry of Justice still dealt with Nacht und Nebel cases. The defendant Klemm denies, in general, knowledge of NN procedure. Fourteen exhibits have been introduced in this case showing transactions concerning NN matters, subsequent to the time Klemm took over the office of State Secretary. The defendant admits knowledge that Nacht und Nobel prisoners were transferred from Essen to Silesia. He admits refusal of spiritual care for NN prisoners by foreign clergymen. He admits knowledge of a draft of a letter from Thierack to Bormann to the effect that NN women who were not to be executed should be so advised. He admits denying clemency to eight NN prisoners when he was acting as Deputy for Thierack. In the remaining 123 cases, clemency was denied by Thierack when Klemm was presumably sitting in conference with him.