The latter was amenable to that and apparently tried to intervene with the Minister that the order should be rescinded. Also, quite apparently, he was not successful.
Q: Do you remember any cases where Klemm knowingly, consciously, put the points of view of Party politics into the background as against the point of view of the capability of an individual?
MR. WOOLEYNAN: Witness, one moment please.
Your Honor, I object to that question. It is asking the witness for his opinion as to the state of a man's mind and, for subjective reasons, why another person gave an opinion or did an action.
THE PRESIDENT: The objection is overruled.
BY DR. SCHILF:
Q: You may answer, witness.
A: I only remember one case in all that extended period. The problem was that at that time the position of a Senat President at the Reich Hereditary Farm Court had to be filled, and the right for nomination or appointment was with the Reich Ministry of Food and Agriculture.
Q: Excuse me for interrupting you, but can you tell us the date when that position became vacant?
A: It may have been the summer of 1944.
The Reich Ministry of Justice tried to place officials from the Administration of Justice in such positions. Alstoetter, who was in charge of the Department where, among other things, the law concerning hereditary estates was to be dealt with, intervened at that time concerning the appointment for that position.
Although he had nothing to do with personnel matters as such, he suggested, and supported the idea, that the then Senat President with the District Court of Appeals at Munich, Ehard, who is now Prime Minister of Bavaria, should be nominated for that position. He contacted the personnel department and asked for their evaluation of the capabilities of the individual in question. As far as we were concerned -- as Referent in charge of matters of the Hereditary Estate Court and Leetz -- we supported that and confirmed it.
However, it was pointed out to me that there might be difficulties because Ehard had been assistant prosecutor in the Hitler trial of 1924 -- and was in disfavor since that time with the National Socialists. Apart from that, he had been a member of the Bavarian People's Party before 1933, and was still not a member of the party.
I was no longer present during the subsequent reports to Undersecretary Klemm and the Minister; I was only informed, and I observed myself, that a letter was written by Klemm to the Undersecretary in the Party Chancellery -- Klopfer -- wherein he stated the intention of the Reich Ministry of Justice to recommend Ehard for the position of Senal President or to the Reich Hereditary Farm Court. He also personally recommended Ehard and asked, finally, what the point of view of the Party Chancellery was. As far as I know, the Party Chancellery answered that there was some objection against that gentleman because he was not a member of the Party and it would be better if the Ministry of Justice could find out whether there wasn't another candidate with the same qualifications.
Before the matter could be carried any further, the collapse occurred.
That is how these matters developed, if I remember correctly.
DR. SCHILF: I have no further questions, Your Honor.
DR. WANDSCHNEIDER (Counsel for the defendant Rothenberger): I ask to be permitted to examine the witness Dr. Miethsam. I also had intended to submit an affidavit by Dr. Miethsam.
BY DR. WANDSCHNEIDER:
Q: Dr. Miethsam, since when do you know Dr. Rothenberger?
A: Since about August 1942.
Q: That is to say, since the beginning of his career as Undersecretary in Berlin?
A: I have to make a correction. I cannot tell the date precisely, but once, during a conference of chief presidents in Berlin, I heard him make a speech, without making his personal acquaintance.
Q: Thank you.
Do you know of a case Ankenbrandt, which was concerned with a judge who was supposed to have been here in Nurnberg? Do you happen to know the case?
A: Yes, I know the case.
Q: Would you please describe that case to the Tribunal, such as you remember it?
A: The President of the District Court of Appeals in Nurnberg made a report to the Ministry of Justice that the Amtsgerichtsrat, (local court judge) Ankenbrandt, in Nurnberg, was excluded from the NSDAP by a preliminary decision of the Kreisgericht in Nurnberg, because, as a judge conducting investigations, he had examined a Jewish woman who had intended to emigrate to the United States -as a witness and under oath.
That information was received by the Ministry of Justice in about the summer of 1942. We submitted the matter to Undersecretary Rothenberger. He was highly indignant about that interference on the part of the Party, if I may say so, into the independence of the judge, and he instructed us immediately to lodge a protest with the Supreme Party Court, not only on account of Judge Ankenbrandt, but because of the principle in the matter.
Accordingly, we addressed a letter to the Supreme Party Court in which we pointed out that it was a purely official action on the part of the judge with which he was now charged by the Party. To my knowledge it was also emphasized that official action on the part of the judge was according to the law, and in addition it was especially criticized that the judge was charged by the Party court without having given an opportunity to his official superiors to state their opinion. As far as I know a short time later a letter was received from the Supreme Party Court. Altogether on the whole the point of view of the Ministry of Justice was approved of on the part of the Supreme Party Court. In order to prevent similar cases in the future, fundamental instructions were given to the subordinate party courts.
Q Was it one of these instructions that in case proceedings were intended against judges or higher officials that under all circumstances one had to see that the superior authorities of the state, that is to say first the authorities of the administration of justice should be informed in detail about the case?
A That was so, yes.
Q Can you still remember what the result was in detail, the actual result of that case against Judge Ankenbrandt? Did he remain or did he not remain in the Party?
AAs far as I remember, the decision of the Kreisgericht and later the Gau Court of Nuremberg was rescinded, but I could not state that with absolute certainty.
Q You said, Dr. Miethsam, the witness had been expelled from the Party. What would have been the consequences of such an expulsion from the Party for a judge?
A The fact of being expelled from the Party did not have immediate consequences. That is by force of law, for instance, that he would have lost his position in the administration of the state. At any rate, however, as far as I remember there was a provision that the Party Chancellery then in such cases could request of the supreme official authority the initiation of disciplinary proceedings.
Q Was it in fact so that in all cases where an official was expelled from the Party disciplinary proceedings against that man were an absolute result, a certain consequence?
A That depended on the merits of the individual case.
Q Thank you. Dr. Miethsam, can you inform us as to how Dr. Rothenberger behaved when in the beginning of his term in office an attempt was made to influence the lower judges' positions?
A I remember the following from my sphere of work. I had received in my office several letters from the Party chancellery where requests were made for the filling of lower positions, such as Amtsgerichtsrat positions or positions as prosecutors. Under-secretary Rothenberger had ordered that these cases be submitted to him. In the course of that report Rothenberger seemed to be very astonished; even indignant that the party interfered in the appointments for such minor positions and ordered me to submit the total file to him with a compilation. He stated that he wanted to try to stop these things.
Q Thank you. Dr. Miethsam, can you tell me quite in general whether Dr. Rothenberger listened to criticism in party matters, whether he accepted criticism of people of the Party and whether he criticized himself.
A In case of official reports within a small circle, of course one became a little more intimate and here and there there was some rather severe criticism voiced about the one or the other measure of the Party, on the one hand by the Referent or if the adjutant of Undersecretary Rothenberger was present, by the adjutant. Undersecretary Rothenberger did not object to that. In his rather impulsive manner he sometimes participated in it.
DR. WANDSCHNEIDER: Thank you. I have no further questions.
BY DR. SCHUBERT (For the Defendant Oeschey):
Q Dr. Miethsam, if I understand you correctly you were personnel referent for the Bavarian judges and prosecutors since 1938.
A Yes. Before that I was a temporary employee.
Q From that time on you also were concerned with the personnel matters of the defendant Oeschey?
A Yes.
Q Dr. Miethsam, Oeschey on 1 October 1939 was transferred from Aschaffenburg to Nuremberg. Do you happen to know whether that transfer was done upon the intervention of political offices?
A I do not have any accurate recollection of that. I have to admit that there was a possibility. I only know that his promotion to the position of Langerichtsdirektor, director of the District Court, took place on account of the intervention of the Party Chancellory.
Q Dr. Miethsan, by that transfer to Nuremberg, did that entail a promotion?
A No, it was the same rank and the same pay.
Q According to your observation were Party offices ever interested in the question of transfers?
A You mean generally?
Q Yes.
A Yes, because there was a difference, of course, between a good place and a bad place.
DR. SCHUBERT: I have no further questions.
BY DR. ORTH (For the defendant Altstoetter):
A Witness, from 1935 until 1945 you were in the Reich Ministry of Justice as a higher official in Berlin. Would you please tell us whether a higher official of that ministry had to know about the crimes committed by the SS or the Gestapo or in the concentration camps?
A Of the crimes about which we know today an official at any rate in the personnel department where I was knew as much or as little as any other German.
Q You know Mr. Altstoetter?
A Yes.
Q What was the main reason for his being transferred into the Reichministry of Justice?
A On the whole I am not informed about that. Minister Thierack took care of that. He had the reputation of an excellent official with great knowledge in his field.
Q Witness, before you mentioned a suggestion by Altstoetter to have the present Prime Minister Ehard appointed Senate President of the Erbhofsgericht Hereditary Farm Court. Did Altstoetter himself initiate that recommendation?
A I believe that it was on his initiative.
Q Did he push the support for Ehard with great energy, even after he started to encounter difficulties?
A I was frequently informed by our chief director Leetz that Altstoetter time and again brought up the suggestion concerning Ehard and did not tire of doing so.
Q I have one last question. Is it known to you that at that time the intention existed to make that hereditary form court absolutely independent?
A No, I do not know anything about that.
DR. ORTH: Thank you.
THE PRESIDENT: Has any other counsel for any other defendant the desire to examine this witness as his own? (No replies) You may cross examine.
CROSS EXAMINATION BY MR. WOLLEYHAN:
Q: Dr. Miethsam, I have one question I'd like to ask you. In response to a question put to you by counsel for the defendant Alstoetter, with regard to knowledge of concentration camps by the defendant Alstoetter, you answered that there of course was no knowledge of such matters in the Ministry of Justice. Dr. Miethsam, how do you know what the defendant Alstoetter felt or knew about anything except in your field of promotions, transfers, and other personnel matters?
A: May I first say I believe that I said that in my department, on the basis of events which came to the knowledge of the individual Referent, that the individual did not hear more or less about the atrocities, as we know them today, than any other German. At least I intended to say that. I did not intend to say that Alstoetter, perhaps on the basis of a special knowledge, knew more about it.
Q: That is all.
THE PRESIDENT: The witness is excused.
(Witness excused)
HERBERT KLEMM, resumed the stand and testified further as follows:
DIRECT EXAMINATION - Continued by dr.
schilf;
Q: With the permission of the Tribunal, I continue the examination of the defendant Klemm as witness in his own case.
Mr. Klemm, yesterday we had reached your description about your work as SA Liaison Fuehrer with the Reich Ministry of Justice. You had mentioned Exhibit 438, that is NG-938, Volume I Supplement. Now I ask you whether you would like to add anything to this matter or whether you have finished dealing with it.
A: I believe that I dealt with that matter quite exhaustively.
Q: I ask you to give the Tribunal further examples about your activity as Liaison Fuehrer. I may say that it is a coincidence, but when you were questioned we just stopped at that point where the witness Hecker mentioned a matter referring to the then Regierungsdirector Schaefer at the camp of Papenburg. Will you first please tell us what you know about this case?
A: I do not intend to repeat the facts as such because they have been described by the witness Hecker yesterday. I only refer again to that case in order to show how extremely difficult it was to take care of the interests of the State as confronted with the interests of the Party. In this case, the main difficulty was that Schaefer, as an official, had done things or not done things in his capacity as an official of the State which were to the advantage of the SA men. Therefore from the point of view of the SA, there was absolutely no reason to intervene against Schaefer. But particularly from my work in Saxony as legal consultant to the SA and there again particularly in the case Hohenstein, where it was tremendously difficult to drop these SA men because there were men among them who for many years before Hitler became Reich Chancellor had been SA men, for in that case I had seen that with tenacity and by pointing out the major points of view, one could achieve something.
I approached the case Schaefer first from my point of view, that is as seen from the point of view of the SA. I described to the Chief of Staff Lutze that it was incompatible with the reputation of the SA that disciplinary proceedings should be initiated against an official, and that as far as the SA was concerned nothing would be done against that man. Thus I could only prepare the ground for an interview of Ministerialdirector Krohne and Ministerialdirigent Marx with Chief of Staff Lutze. Then in the course of the investigations against Schaefer, the whole case did not look as difficult any longer than it appeared in the beginning. Later, of course, I had to encounter bitter attacks from the SA. One of the Adjutants of the Chief of Staff, who was known as a particularly ruthless individual, even threatened me that I, myself, one day would end up before the disciplinary court before the SA. My best protection in that case was the Chief of Staff Lutze himself, who rather agreed with my trend of thought.
Another particularly tragic case occurred in SchleswigHolstein. There was a doctor who up to 1933 had sacrificed his entire fortune forturn for the SA. He was charged with commercial abortion. He was a doctor, as I said. The local SA officers questioned the Chief of Staff Lutze to see to it that the proceedings against the doctor be quashed on account of his former merits. In repeated conferences and with the greatest effort I finally achieved that the SA did no longer intervene for that man. When the main trial approached -- before that I had told the Chief of Staff Lutze that I expected that a sentence would be pronounced of about six to eight years penitentiary.
When the day of the trial came, the man finally was acquitted. But it was found later that the judges had been outvoted by the associate lay judges and that in bad faith on the part of the lay judges. In that stage, after the man had been acquitted, again I was attacked violently, and that only ceased when against the acquittal the Ministry of Justice ordered a revision which repealed the first sentence, and after in a second trial the man had been sentenced to six years in the penitentiary.
Here again locally interested SA offices demanded that I intervene; that a revision of the first verdict should not be carried out. I refused to intervent, and thus the trial ended according to the provisions of the law. Those are examples of the activity I had during the time.
Q As a liaison fuehrer with the SA, between the SA and the Ministry of Justice, did you also intervene in clemency cases for individual SA men? You just described two cases, two matters where you intervened for the principle of law against two SA men. Now, I ask you whether you intervened in the interest of other SA men, that is the SA within the Ministry of Justice.
A On the whole this is the way it happened: By decree it was stipulated that the SA should be informed by the justice authorities whenever a SA man had been sentenced by the Administration of Justice.
In the course of time, and that had already developed in about 1936. the SA reacted vehemently upon such informations, and by way of its own disciplinary jurisdiction expelled people who had received such sentences. That was first of all the case in the cases of dishonorable offenses -- theft, fraud; whereas, such things as traffic violations were not reacted upon, nor were simply negligant offenses; but, on the other hand, it did happen that on the basis of the old comradeship the SA also took care of the dependents, the wives and the children of a man although he had been expelled and was in prison. Then I was frequently asked whether a clemency plea for one or the other had any chances. Then I stated my opinion in the interest of the SA and stated, for instance, this would not be the right time to file a clemency plea; in accordance with the general principles in the Ministry of Justice it seems to be too early; the man has to serve a certain portion of the sentence first, which would be a longer period than the one he has served up to now. Or, I might have said in this case you would have some chances; such applications, however, would then no longer go through me, but through the chancellory of the fuehrer, which was under Reichsleiter Bouhler.
There was a party directive providing that applications from the party and its organizations, should be dealt with by the party chancellery of the fuehrer, that is Reichsleiter Bouhler; and that to be done in individual penal cases. But I also worked with the SA legal office, the supreme SA legal office, and together with them composed the draft for a directive of the Supreme SA Leadership for the handling of clemency matters by the SA. That directive provided, first of all, that in considering all elements of comradeship one still had to keep in mind and to consider how and to what extent it was compatible with the principles of the SA to intervene for a man who had been sentenced.
Q Herr Klemm, the Prosecution's Exhibit 466, that is NG-610, in Volume I Supplement, contains personnel files of the Ministry of Justice and also concerns your promotion in 1939, and the suggestion is made that you should be promoted from senior prosecutor to Ministerialrat. The suggestion is also justified by the reasons which are given as follows: There is one sentence on page 3 of the German Text, about the middle of the page, which I want to read. It says under Figure 2: "Senior Prosecutor Klemm is a member of the party since the 1st of January, 1931; he is Standartenfuehrer in the SA; and SA liaison fuehrer of the Supreme SA Leadership to the Reich Ministry of Justice. As such be gained great merits."
Mr. Klemm, will you please speak about this briefly.
A If in a suggestion for promotion the Reich Ministry of Justice makes that statement, that proves that I took care of the interests of the Administration of Justice against the SA.
Q Will you also comment on the fact whether that may have been a determining factor for your promotion.
A I don't think so, and that because my promotion from Oberrat to Ministerialrat actually came after five years. There were party members who three years after they had become Oberrat became Ministerialrat.
Q That is sufficient, Mr. Klemm, Thus we have finished our discussion of the subject of the SA liaison fuehrer. There were no further documents submitted by the prosecution concerning that point, Now, we come to the second phase, that is the time of your activity in the Netherlands; the indictment mentioned that activity, and I ask you to describe to the Tribunal how these events occurred -- in succession.
A When I received the order to go to the Netherlands, I was in France as a soldier, I was transferred to my home station, discharged from the Armed Forces and on the 1st of July, 1940, I assumed my position in The Hague in the Netherlands. When the German Civil Administration had been established about five weeks before, it was faced with the fact that in the occupied Netherlands there were fifty to sixty thousand German nationals who lived there. At that time one even mentioned the figure of one hundred nine thousand to me. The Wehrmacht had refused, for lack of manpower, to assume jurisdiction in penal matters over these German nationals, and the Reich Commissar for the occupied Netherland territories was forced to establish a jurisdiction for these German nationals, and to establish that penal jurisdiction was my first and uppermost task. The second task was to establish liaison between the Dutch Administration of Justice and the Reich Commissar Seyss-Inquart. The Dutch Administration of Justice in the field of penal jurisdiction, as well as in the civil field, continued without disturbance -- with one single exception: When I arrived at The Hague, all civil cases had been arrested where a German had appeared as a plaintiff or as the accused.
Court,3, Case 3 I immediately saw to it that the Dutch Administration of Justice was permitted to continue these cases without any supervision or guidance from the German Civilian Administration.
The penal administration of justice which I established in the German sector and which was competent, first, for all Germans who were not members of the armed forces, and, secondly, for all Dutchmen who had infringed German interests, unless they had to be put before military courts, before court martial.
THE PRESIDENT: We will take the regular morning recess of fifteen minutes.
(A short recess was taken)
THE MARSHAL: Persons in the court-room will please find their seats. The Tribunal is again in session.
Q: You may continue Mr. Klemm.
A: During this activity I had to deal a great deal with the General Secretary of the Netherlands Ministry of Justice. He repeatedly informed me that for the judges in the Netherlands, it would mean facilitation if those Dutch nationals would be sentenced by a German court who had committed crimes against German interests; by these means the Dutch judges would be saved many conflicts of conscience.
Q: An interim question. Would you tell the Tribunal the name of the Secretary General of the Netherlands Ministry of Justice?
A: The name was Secretary General Tenking, who during the course of 1941 resigned, and immediately after the German troops had evacuated the Netherlands in 1945, returned to his position as Secretary General in the Netherlands Ministry of Justice. In 1945 he resigned -- I meant to say in 1941, approximately I believe actually during the same week when I was transferred from the Hague to Munich. The German penal administration of justice which I built up in the Netherlands was an especially gratifying task. It pleased me to show the Dutch people, too, how the German administration of justice worked. And, I was supported extensively in these efforts by the Reich Commissar Seyss-Inquart. Very careful attention was paid to it that German defendants would not be treated any differently than Dutch defendants. As far as I remember during the time when I was at the Hague, the German courts did not pronounce a single death sentence. For the prosecution as well as the courts in the Netherlands, I appointed as my assistants only people whom I knew personally; I did not accept any single suggestion which was made to me by party offices.
The presiding judge of the German Landgericht, district court, District Court Director Dr. Thierbach, was not a party member. I was interested in having only legal points of view, and not political points of view emphasized. Due to the outbreak of war between the Netherlands and Germany all of the treaties between the two states were rescinded. Difficult situations arose and conflicts, especially in the field of civil law. I was to it that the Ministry of Justice in Berlin, and the Reich Commissar for the occupied Dutch territory issued orders which had the same contents, so that a short time afterwards, again legal remedies in civil cases between the Netherlands and Germany were possible. The cooperation between the Netherlands offices of the Administration of justice was absolutely loyal and without conflict.
Q: Mr. Klemm, we can now leave this field. The Prosecution did not submit any further documents in regard to our activities in the Netherlands. As I have already stated your activities there were only pointed out in the indictment. We come now to the third phase of your activity, namely, your activity in the Party Chancellory in Munich. I ask you, first of all, how did it happen that you came into the Party Chancellory at all? Please also tell the exact dates to the Tribunal, first.
A: I began my activities in Munich on 17 March 1941. At that time the Party Chancellory did not exist at all. At that time there was only the staff of the Deputy of the Fuehrer, and that was Reich Minister Hess. Reichs letter Bormann, who had the position of Chief of Staff was not in Munich at all, but since the beginning of the war, in the Fuehrer's Headquarters, in the immediate proximity of the Fuehrer.
And that remained the same way during the entire course of the war. From the Party Chancellory I knew the Chief of Department III, that is Under-Secretary Klopfer. I have known him since 1924 or 1925; that is from my student days. We had not seen each other at all for one or two years, and had not written to each other. We met by chance in Berlin in January 1941 in front of the Reich Chancellory, on the occasion of the funeral of the Reich Minister of Justice Guertner. I had come for this funeral from the Hague and Klopfer happened to be in Berlin. At that time Klopfer had just been given Department III in the Staff of the Deputy of the Fuehrer, and he asked me whether I would like to work in his department, and to take over the group in charge of the administration of justice. That group consisted at that time of two or three people, and there was no group leader because he was employed in other matters.
Q: I believe that is sufficient to describe the cause A: (Interposing) I said at the time to Klopfer that I kiled it very much at the Hague; that I had an independent position there.
I was able to work independently, but during the war things were not done in accordance with the personal wishes of a person; that I would work whereover I was assigned to work. I never heard anything about it again until one day Seyss-Inquart called me to him and told me that he had a lengthy correspondence with the Party Chancellory, that the Chancellory had asked for me, that he had fought against this, but in the end had to give in after all. And he had agreed to the Chief of Staff of the Deputy of the Fuehrer to put me at his disposal and, therefore, he instructed me to start my service in Munich four days or a week later.
That is how I entered the Staff of the Deputy of the Fuehrer at the time.
Q: Before we now turn to your activities in detail in the Party Chancellory, it seems to be necessary to tell the Tribunal the most important facts about the organizational structure of the Party Chancellory or the Staff of the Deputy of the Fuehrer. You know that the Party Chancellory has a bad reputation. We want to tell the Tribunal first the outside organizational structure.