Q: When you went there, all military operations had ceased. How will you explain to me what was the necessity in International Law for you to set up a special law in Holland for folk Germans?
A: A special substantial law for Germans was established, but a law of criminal procedure and a German judiciary was considered necessary, as I have already stated repeatedly, for one thing, for reasons of prestige, above all; however, in order to avoid that a Dutch judge would enter into conflicts with his conscience if he was supposed to sentence a German in a country which was occupied by the German Wehrmacht.
Q: May I read in part the finding of the IMT and ask you if these facts were true when you were there?
"As Reich Commissar for the occupied Netherlands, Seyss-Inquart was ruthless in applying terrorism to suppress all opposition to the German occupation a program which he described as annihilating his opponents. In collaboration with the local higher SS and police, he was involved in the shooting of hostages for offenses against the occupation authorities and sending to concentration camps all suspected opponents of occupation policies including priests and agitators. Many of the Dutch police were forced to participate in these programs by threats of reprisals against their families. The Dutch courts were also forced to participate in this program, but when they indicated their reluctance to give sentences of imprisonment because so many prisoners were in fact killed, a greater emphasis was placed on the use of summary police courts."
What do you have to say to that in view of the fact that you set up these German courts?
JUDGE HARDING: On what page is that?
MR. LA FOLLETTE: Your Honors, that is Pages 17053 and 17054 of the mimeographed edition of the IMT finding.
THE WITNESS: At that time until 16 March 1941 I was after all in the Netherlands. I never heard anything about these occurrences which are described here. Neither on the military nor on the civilian side did I at that time ever hear anything about the shooting of hostages or the other matters which are described here. These must all be occurrences and facts which happened after the time I was in Holland.
At the time I was there, the German administration of justice did not have to concern itself with things of that kind.
Q. Now, you described in some length your experiences at the party chancellery, and I think you said that Bormann had a very low opinion of the people on the so-called justice side of the party chancellery headquarters. Is it a fact, from your testimony today, that it was Bormann who requested you to be sent to the party chancellery -- or rather, your testimony on the first day you testified.
A. When I was transferred to Munich, the party chancellery did not exist yet at all, but rather it was the staff of the deputy of the fuehrer, and the chief of staff of the deputy of the fuehrer was Hess. Bormann was chief of staff at the Fuehrer Headquarters. Klopfer was the only one who knew me -- and that from my student days -- and he as chief of department III was the one who succeeded me. Whether Klopfer ever discussed this with Bormann or with Hess, I don't know. In any case, I first met Bormann and Bormann met me after I had already been in Munich for some time when Bormann happened to come once to Munich from the Fuehrer's Headquarters.
Q. I am returning a minute now to the time you were in the Reich Ministry of Justice. You discussed Exhibit 376, which is NG767, in Book V-D; this is dated 21 January, 1939, and is headed Leitmeritz. The subject is application of the law for the protection of German blood and German honor in the Sudetan German territories. You said that it was in your opinion by accident that this was actually sent to you, and I want to ask you in view of the fact that there are on the fifth page of that document, dated 24 February, or rather, circulation of the ordinance which you say was circulated somewhat later, but there are some forty names, and after your name there, Klemm 21/8. Why didn't you sign just once along with the other some forty or fifty names in the party chancellery, rather than sign where it is written "the consultants for political and internal penal cases in the Sudetan territories, further to chief public prose cutor Klemm," if you handled no racial matters at all?
A. That is exactly the same that I have already stated. I cannot recall at all that at that time I was supposed to receive this special order where on page 4 it says "further to Klemm and von Schroeter," but particularly within the scope of this list on which there are forty to fifty names -- there I signed together with the others; that was the circulation within the entire division; it was shown to all those who worked there, and within the scope of this circulation I co-signed as everyone else in the division. That happened very frequently, namely, that rather than make the effort to ferret out singly those who had to deal with these matters, the, offices circulated such memoranda in the entire division. It is also apparent from the dates which are on this list, behind the remarks that they have seen it, after the other peoples' names, that this memorandum was circulated day by day, from one to the other within the entire division until everybody had seen it, and without consideration of the fact whether the individual was competent for it or not. I could name quite a number of colleagues who were not competent for this work, and in spite of that, signed this circular memorandum.
Q. May we return to this Hague matter again. I think you have before you your personnel file. On the 13th of March, 1941, on the stationary of the Reich Commissar there is a letter signed by you which states "at the request of the Reich leader Bormann, the Reich Commissioner for the occupied territories has agreed to transfer the undersigned to the deputy of the fuehrer's staff, effective 17 March, 1941." Will you explain, if Bormann had never heard of you, how you yourself write that it was Bormann who asked to have you transferred?
A. According to this letter I did not ask at all that I should be transferred, but the letter read as follows: On the request of Reichleader Bormann, the Reich Commissar for the occupied Netherland territories agreed that the undersigned should on the 17th of March, 1941 be transferred to the staff of the deputy of the fuehrer.
At that time it was as follows: Klopfer had suggested me to Bormann as to the chief of staff, and Bormann, the chief of staff of the deputy fuehrer, wrote to Seyss Inquart. There is a second point. The staff of the deputy fuehrer at that time probably had got in touch with Seyss Inquart who was in the Netherlands, but not with my competent home office, - that is the Reich Ministry of Justice; therefore, I on my own reported immediately when Inquart informed me that I would have to go to Munich, and when I asked him whether my home office, that is the Ministry of Justice knew about it, and when Seyss Inquart said they did not, I immediately sat down and addressed this letter to my home office in order to inform them.
Q. Yes, but it was the Minister of Interior that requested you to go to Holland, and Bormann who requested you to come to the deputy fuehrer's office. That is true, and I don't believe we need a long explanation on that.
A. Not the Minister of Interior in his capacity as Minister of Interior, but the Minister of Interior as Plenipotentiary General for the Reich Administration. He organized civil service for the civil authorities in the Netherlands. I don't understand the meaning of your question.
Q. Well, you write on your own stationary that Bormann asked that you be transferred to the party chancellery; that is correct?
A. Yes.
Q. Yes.
A. Because that is what I was told -- that he as the chief of staff of the deputy of the fuehrer wrote it; that was his task as chief of staff.
Q. Now, on Monday, Mr. Klemm, you discussed with Dr. Schilf Exhibit 456, NG-326, which is dated June 12th, 1937, at the time that you were in the Reich Ministry of Justice, and have consistently testified that you had nothing to do with matters involving race, or Jewish or Polish questions.
This is in V, supplement, on page 7. You say Dr. Schilf said it is a decree by Heydrich, as Chief of the Reich Security Main Office; and, you say you did not know anything of that. That decree is from 1937 Heydrich's decree, as can be seen from the directions in the lower left-hand corner, exclusively addressed, directed to the Offices of the Police. I think that there has been some mistake in discussing this document. You state that it is marked "cancelled 28/8/38" and the whole decree, of course, is not marked "cancelled"; it is the provision "for secrecy" which is marked "cancelled." I am going to hand you this original and ask you whether or not that is not your signature?
A Yes, but this is a different copy of this document then the one which was introduced as Exhibit 456. According to that document book I do not have it here at the moment, it had a file note there of "II-A"; according to this photostat the file note is III-A, the one that is on this copy. Moreover, I did not speak about cancellations, but I believe that Dr. Schilf made those statements. I did not speak about this cancellation.
A Yes, I think Dr. Schilf said, "may I point out that Exhibit 456, on the right side bears a note in German, "cancelled." It seems, therefore, that decree was rescinded later by Heydrich, himself. You find on examining it that your initials are beside the cancelled point, do you not?
A Yes.
THE PRESIDENT: Is the original exhibit the one which is now in the possession of the witness?
MR. LAFOLLETTE: Yes, the original one is in the possession of the witness.
THE PRESIDENT: Thank you.
MR. KLEMM (the witness): Unfortunately I do not have that document book with me here; there must be another document because in that it said Division 2-A.
THE PRESIDENT: You may rely upon the original exhibit which is in your hands.
Q That speaks of protective custody for Jewish race despoilers. And, you said on 7th of July; "on the whole, as a general referent, I had nothing to do with these matters because police did not only commit such perpetrators in critical penal cases but also in non-political cases. Consequently, it was the task of the main general referent; however, I personally had nothing to do with these matters."
A Yes.
Q When you look at that exhibit there is some mistake somewhere is there not in what you said on Monday, and what you want to say now on that subject. Do you want to explain?
A Since I have seen this, and I must have seen it since I had my initials on it, I must also assume that I put that question mark on it. Then, after I signed it, it was forwarded to the main general referent who worked on general matters; that is the only way I can imagine it. That, after all, happened ten years ago.
Q Yes, thank you. Would you case to see this Dr. Schilf.
(The document was handed to Dr. Schilf).
Now, returning a minute to Exhibit 367, NG-767, Book IV-D, that is page 323 in the English text; that also deals with racial matters to the extent of the application of laws for the protection of blood German blood and German honor of 15 September 1935, in the Sudeten German territories; that has number 3 on it, but as we have observed, it went to you first. Did you have some special arrangements whereby you were to see racial and police matters while you were in the Ministry of Justice for the benefit of the Party?
A No, within Division 3, my activities were exclusively to work as an expert on legal matters only. My activity as a liaison leader for the SA was in that connection also applied outside of this division, or divisions in matters concerning the SA. If the referent submitted it to me, it was shown to me.
I did not work in Division 3 as a political exponent.
Q In that Exhibit 376, before we leave it, Dr. Mitschke, I believe is mentioned.
A Mitschke.
Q How long did you know Mitschke?
A I met Mitschke in the Ministry of Justice in Berlin.
Q How long did he remain in the Ministry of Justice; was he there until the end - do you remember?
A If I remember correctly, he was still in the Ministry of Justice in 1944; whether he remained there until the end, that is, 1945, I do not know.
Q Now, with reference to Exhibit 256, NG-366, about which you testified on Monday - you stated that: "I never kept the official minutes," and then you said "as for the notations which are compiled in Exhibit 256, these are notations which I made for the Department Chief, Dr. Crohne." Let me read the last paragraph on page 9 in the English book: "The Ministry concludes the discussion by indicating that it is to be the task of the presidents of the courts of appeal to see that arrests in courtrooms by the State police are avoided, and recommends for the rest to maintain the connection with the State police"; and, then, there is your signature.
A Yes, the Minister spoke the concluding words and in so doing he made the statement which is written down in telegram style.
Q Well, do you not find that the ending is in the form of the minutes of a meeting, more than what you would use if you were merely taking notes for your Minister. Would you say the Minister concluded the discussion; that is all you were doing?
A I did not understand the meaning of the question.
Q Well, if you were merely taking notes for your Minister and not notes of the general meeting, would you say "the Ministry concluded the discussion" if you were going to send the notes right over to your Minister?
A But that was not that, that transcript was not for the Minister but for the Ministerialdirector, Dr. Crohne. I could just as well have written "the Minister stated at the end after the individual, presidents of the district court of appeals and the general public prosecutors had made the statement -- the Minister declared the following," and then could have written it down.
Q Thank you.
THE PRESIDENT: The time has arrived for the morning recess.
(Thereupon a recess was taken.)
THE MARSHAL: Persons in the courtroom will please find their seats.
BY MR. LAFOLLETTE:
Q Mr. Klemm, I think you testified that you were given considerable control over personnel matters by Minister Thierack. Where was the office of the personnel division of the Ministry located from the fall of 1943 until the fall of 1944?
A From 1931 to 1944 -
Q Sorry, that is 1943 to 1944.
A Whether in 1943 it had already been evacuated I don't know. In 1944 it had been evacuated to Leitmeritz.
Q And where is Leitmeritz?
A That is in Sudeten Land. As far as I remember, when I went to the Ministry as Under-Secretary, it had already been evacuated but I cannot say for certain.
Q Witness Miethsam was in that section, was he not?
A Yes, he was.
Q Under questioning by Dr. Schilf, Dr. Schilf asked him: "May I ask you where your Department "one" was located during the last years after it was evacuated from Berlin?" And he said, in answer, "From the fall of 1943 until October, 1944, in Leitmeritz on the Bele in Bohemia. From October 1944 until the middle of March, 1945, in Prenzlau in Uckermark." Is that approximately correct, as your memory goes?
A That may be about correct, yes.
Q In discussing Exhibit 376, NG-767, which we have previously discussed in Book V-D, Dr. Schilf says that is the statement from the Reich Ministry of Justice made to the chief of the prosecution at Leitmeritz, which at the time of that letter, January, 1939, was in the so-called Sudetengau. That is the same Leitmeritz that Dr. Miethsam was talking about, wasn't it?
A Yes, yes, that is the same Leitmeritz.
Q You were located in Berlin during the pogrom of 1938?
A Yes, I was.
Q Did you see any of the events that took place there?
A No. What exactly are you referring to at the moment -- Berlin or Leitmeritz?
Q I am referring to Berlin. I am sorry if I didn't make myself clear. When you were in Berlin in 1938, did you see any of the events of the pogrom?
A No, I did not see anything. But that anything happened at all during that night I only heard at the Ministry.
Q This affair only lasted one night?
AAs far as I know in Berlin, it only lasted for one night. I cannot remember anything else.
Q You knew a about the passage of the Nurnberg laws, surely, as a lawyer?
A I don't understand the question.
Q As a lawyer, you knew of the passage of the Nurnberg laws in 1935?
A Yes, I did. They could be read in the Reichsgesetzblatt -- the Reich law gazette.
Q Were you at Nurnberg when they were passed?
A No, at that time I was not in Nurnberg.
Q Now, in Exhibit 205 which is on page 71 of Book III-H and is NG-283, you signed the letter approving a letter from the Reich Ministry of Justice of 5 August, 1943, in which you said, "No objections are raised to applying the German criminal code for juveniles to foreign juveniles unless they are Jewish, Polish and gypsies," and I think you said that that referred to Document NG-279, which very frankly I was informed for the first time you said was not introduced into evidence. That is all a correct statement of what you said, I am sure.
Now will you explain to me how in III-C and with Bormann absent you signed this order?
AAs I said, Exhibit 205 is a reply to a letter from the Reich Ministry of Justice which preceded it. It is possible that -- I cannot say for certain from memory -- that as NG-279. I have no documents with me here, and therefore if I had the dates here I could make a statement but as I have the documents not with me I cannot do so.
Q These are the same -
A May I ask you what is the date of that letter from the Reich Ministry of Justice NG-279?
Q 279 -- that was August 5, 1943.
AAnd the reply?
Q The reply is September 7, 1943. The reply is Exhibit 205.
A Yes, thank you. In view of the time lag between 5 August 1943 and 7 September 1943, I am bound to conclude that a written report was submitted to Bormann which went to the Fuehrer's headquarters, and I must further assume that Bormann made his decision and that the letter of 7 September 1943 contained his decision and was sent to the Reich Ministry of Justice. That is the only way I can explain the matter to myself without having my documents with me.
Q Yes. Excuse me just a moment. -- You also testified late on Monday or rather on the 10th, on Thursday, that when you saw a letter from Himmler dated in April, 1944 - I can't give you the document number right now -- which said that signs in restaurants forbidding Jews could be taken down because that problem had been solved, that had no significance to you, and that you thought that the Jews were living in a state near Leitmeritz in very pleasant conditions and that you saw a picture in the German paper of the Mayor and officers of this Jewish city and state. Is that the same Leitmeritz that was under your supervision in 1943 and 1944?
A Yes, I went to Leitmeritz and at Theresienstadt, not at Leitmeritz there was that town which had been established as a Jewish city.
We passed that city and then we came to a barrier where we were not allowed to pass because we were told that city was exclusively inhabited by Jews. We had to by-pass it to get to Leitmeritz.
Q That city was under the control of the Plenipotentiary for the greater German Reich, was it not, within the area under his control?
A I don't know.
Q Well, how far was it from -- Leitmeritz was under the control of the German Plenipotentiary for the German Reich, was it not -- the Minister of the Interior?
A: Yes, in the field of administration it was under the Ministry of the Interior; purely from the point of view of administrative law it was under the Ministry of the Interior.
Q: And it was Bohemia and was under the Protectorate, which was under the Minister of the Interior?
A: As far as matters of administration were concerned it was under the Ministry of the Interior; in financial matters it was under the Ministry of Finance; and in legal matters it was under the Ministry of Justice.
Q: The officers of the Third Reich -- whether they were in the Ministry of Justice, the Ministry of the Interior, or the Finance Ministry -- exercised jurisdiction over the territory around Leitmeritz in Bohemia, did they not?
A: They exercised that jurisdiction over all areas of the Sudetenland. That was not the Protectorate.
Q: Yes; now, that was not the Protectorate?
A: That is right.
Q: Now, as you went to Leitmeritz you came to this barrier, that said you could not go to this Jewish town.
A: No, there was a barrier there.
Q: I said, you came to the barrier.
A: Yes.
Q: How far was the barrier from Leitmeritz?
A: I guess two to three kilometers, if it was as much as that.
Q: Yes.
A: That was the way from the station of Leitmeritz into the town of Leitmeritz.
Q: Now, you had already seen an order extending the Nurnberg laws into the area of Leitmeritz. You testified that you saw that.
That is a document which you saw while you were in the Ministry of Justice.
A: Yes; that was in the year 1937, or in the year 1939.
Q: Yes. Had you ever seen these laws repealed from around that territory?
A: I don't understand the question; whether those laws were repealed?
Q: Yes, the ones that you saw extended into the Sudetenland. Did you ever see a repeal of them?
A: They were not repealed until the time of the collapse.
Q: And this was before the collapse that you went to Leitmeritz and ran into the barrier, is that right?
A: That was in the year 1944.
Q: Yes, Now I ask you, will you explain to me and to the court, if you lived in Germany during the program of 1938, if you signed a law saying that the Juvenile Code of Germany should not be applied to Jews and Poles and Gypsies, if you knew of the extension of the Nurnberg laws into the area of the Sudetenland, and if you further knew that they were not repealed until the collapse in 1945, upon what grounds you believed the newspaper accounts that the Jews were living in a wonderful city just outside of Leitmeritz. Will you explain that please? And be careful, Mr. Klemm.
A: First of all, I have to correct something. The Poles, by the law against the Poles, and the Jews, by the Thirteenth Citizens Order -- in those two cases a legal arrangement had been made to the effect that those two groups did not come under the Reich Juvenile Law, because the Reich Juvenile Law said expressly concerning its sphere of validity, "unless another legal arrangement had been made", and such an arrangement had, in fact, been made.
Therefore, I am unable to understand your question.
Q: Well, may I read to you from page 17055 of the mimeographed copy of the IMT record?
"Seyss-Inquart admits knowing that they, the Jews, were going to Auschwitz, but he claims that he heard from people who had been to Auschwitz that the Jews were comparatively well off there and that he thought that they were being held there for resettlement after the war. In light of the evidence and on account of his official position, it is impossible to believe this claim."
Now I ask you again, do you still want to tell this Tribunal that you believe that there was a town within two or three kilometers of Leitmeritz in which the Jews were living in a blissful, pleasant state in which they were not molested? Which was your testimony in here on Thursday. Now, do you want to say that again, or have you changed your mind?
A: Yes, I was of the firm conviction that the Jews there lived under their own municipal administration as in a town of their own, and that they had their own restaurants there, their own police, and everything else that is part of a municipal administration. In that my belief was supported by pictures which I had seen some time earlier in German periodicals.
THE PRESIDENT: May I ask you, why did you think that a German official like yourself should be barred from that place by the roadblock?
THE WITNESS: I did not tell the guard there who I was. I did not know that was the way to Theresienstadt.
I wanted to go to Leitmeritz, and I thought I was on the way to Leitmeritz. However, the guard then said, "This is not the way to Leitmeritz, this is the way to Theresienstadt", and we turned our car around. That conversation was only a matter of ten or twelve seconds.
BY MR. LA FOLLETTE:
Q: And you also, on the night of the pogrom in November 1938, stayed inside and saw nothing; is that right?
A: Would you please repeat the question?
Q: I said and you also, on the night of the pogrom in November 1938, stayed inside your house and saw nothing?
A: No, I was nothing. I was at home that evening. The next morning I went to my office, and I did not see anything then either, because nine-tenths of my route to the office took me through public parks. It was only at the Ministry that I heard about it. Several reports came in over the telephone from general public prosecutors, but I had to hand these matters over to someone else to deal with.
Q: Now, you stated on Tuesday, that you were indeed grateful to the prosecution for introducing Exhibit 437 that is document NG-919, Volume I Supplement, page 43. The first of that document is a letter from Freisler, dated the 21st of March 1942, and it is addressed to the Reich Minister and Chief of the Party Chancellery. The subject is: "The Simplification of the Administration of Penal Law." The last paragraph of Friesler's letter is this: "In view of the urgency of the matter, I request that only a representative who is in a position to make binding decisions be sent to this meeting."
You were sent. I thought you told us that you were an unimportant person in the Party Chancery.
A: Yes.
Q: But you had the power to make binding decisions in this matter of the further simplification of the administration of the penal law. That is correct, isn't it?
A: No; I did not have that authority. The wish had been expressed that only representatives should be sent to that meeting who were in a position to make a final decision. Bormann did not delegate that authority and therefore that transcript reveals that no final discussions on that matter were held there. The record states several times that I, as the representative of the Party Chancellery, held out the possibility that that wish might be withdrawn for the very reason that I could not make a decision. I emphasized particularly, at that conference, that I was not empowered to make final decisions, and that is quite clearly mentioned in the record.
Q: So Bormann did not send what Freisler wanted; is that what you want us to understand?
A: Yes, because Bormann never did so; he always wanted to hear about the results first.
Q: Now, in discussing this document, or this exhibit, you pointed out where you had made certain suggestions and advocated certain positions that were contrary to Party policy, and that you acted always in a judicial manner. Now, in the notes of the meeting, Article 3, which is on page 60 of the document book I supplement I read this to you:
"Regarding Article 3, Ministerialrat Klemm wanted to authorize the public prosecutors also to issue warrants of arrest, but he did not insist upon this after hearing the arguments raised against it by the representatives of the Reich Ministry of Justice."
Haven't you testified in here that one of the things that Himmler and the police wanted to do was to get the power of arrest into the hands of the prosecutor?
A Himmler wanted to incorporate the entire Public Prosecution into the police, but at the time when that conference was held until the very last, the Public Prosecution came under the Administration of Justice. Concerning Himmler wanting to get the Public Prosecution under his own competency, that problem never played any part at this conference.
Q In subparagraph D on this page, with regard to Article 8, Ministerialrat Klemm wondered if it would not be suitable also to substitute the readings of the minutes of previous hearings by a police officer for the hearing of a witness. The representatives of the Reich Ministry of Justice objected to this on principle and declared that this would be going too far. Besides, the possibility of doint this was limited according to Article 251, Paragraph 2, Criminal Procedure." Did you want simply to have the minutes of what a man said at a police examination substituted for the witness?
A I did not get the meaning of your question, I am afraid.
Q Well, you heard me read to you that you proposed to substitute the reading of the minutes of a witness' previous hearing by a police official for the hearing of the witness, and so forth, Article 251, Paragraph 1, Criminal Code of Procedure. Now will you explain to me what you proposed to do by that?
A This was the problem. A witness might not be available for the court and the question arose whether in such cases the transcript which had been taken down by the police, and not only by the Gestapo but also by the criminal police or the police altogether, whether that transcript could be used as a substitute in the proceedings in a case where the witness was not available at the trial. That was the problem which I dismissed, and when objections were made that subject was dropped.
Q Now then, also reading on the same page, "Finally Ministerialrat Klemm suggested cancelling Article 414, Criminal Procedure, motion for a judicial decision in the case of penal orders given by the police. Will you explain to us what you intended to do by that?