Q Yes. This followed shortly after the letter that you and Bormann sent out to the Gauleiters and kreisleiters that they were to contact the Ministry of Justice whenever they had any complaints; that is correct, isn't it -- just in time.
A In that circular we just addressed ourselves to the party agencies and had told them do not approach the Ministry of Justice hut approach the party chancery when you believe you have reason for complaints; that we would examine the matter and the files and that in that way false information is to he prevented from reaching Hitler. In fact, the very opposite was intended.
THE PRESIDENT: We will recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 14 July 1947.)
THE MARSHAL: Persons in the court-room Will please find their seats.
The Tribunal is again in session.
MR. LA FOLLETTE: If Your Honors, please, I request the Court to permit me to have Mr. Wooleyhan to conduct the cross examination with reference to exhibit 252, NG 414, that is the material in document book III-L. There will be no duplication. After Mr. Wolleyhan finished I will not address any questions to that issue, but I would appreciate if if I may be relieved temporarily.
BY MR. WOOLEYHAN:
Q. Mr. Klemm, on Thursday morning of last week, you made several statements of which I am going to remind you. First of all with regard to the document which I have just showed you-- this compilation of lists of death sentences. You stated that throughout that document the pencilled letter "T", which as we discussed it that day stood for "Todt" or death; and, also the crosses out case numbers which as you indicated, represented the fact that each case so crossed out had been reported. Throughout the document those notations were made by you. Furthermore, you stated that that document which you hold in your hands is complete for the thirteen months of January 1944 through January 1945, except for roughly a five weeks period in August and September, when you were out of town. You then stated that your estimate of numbers of cases reported to you from those lists would necessarily increase beyond your estimate of 83, if the missing lists were added, and you had not been out of town. You then went on to say, Mr. Klemm, on that same morning last week, that of a total cf 2390 executions of death sentences, which appear as decided on those lists, that you personally decided 85 of them or as you estimated three and one half percent; and, then you said that during that same thirteen month period in which you decided three and one half percent of death sentences, the cases that were reported to you alone for decision on five days, as compared to 38 days on which cases were reported to Thierack, that leaves us with a percentage of 13.
6% of the time in which you decided cases all by yourself. Now I ask you, Mr. Klemm, accepting your figures and your estimates, and not arguing at all with your arithmetic, why is it that of all the death sentences on those lists you only decided by your estimate three and one half percent; and, yet, by your own figures, you were deciding cases all by yourself, nearly fifteen percent of the time? Why is that?
A. It is very easy to explain that. I have already stated that there are lists on which there are only individual cases, but pending penal cases, and then there are lists on which only death sentences are listed; that is, cases that have already been concluded, and that in the third place, there are lists on which individuals pending penal cases which do not enter in the death sentences are listed, and in addition to this, on the same list, death sentences, and these figures which I quoted and on the two days on which I handed down decisions, are days on which the cases which had to be reported to me were very few, especially few. There are lists included in this document on which the Minister had more than a hundred death sentences reported to him in one single day; but, there are also lists, and as it happened those lists about which I had to decide, are among those on which only twenty-one sentences are listed.
Q. Now, that is all very interesting, Mr. Klemm, particularly in view of the fact that you have such an excellent grasp of the number of cases you decided and the number of days on which they we were reported to you or to Mr. Thierack and you also remember quite clearly the days you were conveniently out of town while those cases were being recorded; which brings me to the point that you mentioned the other day, not having recognized from that document, any cases that were familiar to you with the possible exception of one or two.
I ask you now, in the document book which you have, to turn to page 74, in the German, on page 74 do you see the name Sponsel?
A. I would like to correct one thing. I did not say that I recall, but I did say with the help of the lists, I determined which death sentences I dealt with and which death sentences the Minister dealt with.
Q. Please answer more directly.
A. In regard to page 74 what are you trying to point out to me?
Q. I am not trying to point out anything, Mr. Klemm, I merely asked you if, on page 74, of that document, you saw the name Sponsel?
A. Yes, I see it here.
Q. Do you remember the case Sponsel?
A. No, I recall that the sentence was introduced here, and during this trial, but how it was reported at the time, that I cannot recall any more. This is a report list that was made to the Minister. You can see that from sheet 72.
Q. Mr. Klemm, you do remember, however, that the Sponsel case was introduced here as an exhibit, in evidence?
A. Yes, I do.
Q. How, Mr.Klemm, in the same document which you have, please turn to page-
A. (Interposing) The Minister had this.
Q. be are only discussing a very narrow point, Mr. Klemm; if you find the following maned cases on certain pages of that document. How, please turn to page 40; on page 40 do you find the names Ciani and Sala?
A. Yes, I do.
Q. Do your remember that case?
A. No, only that it was introduced here in an affidavit.
Q. Yes, would it surprise you, upon your re-examination of that document to find a score or more of cases which have been introduced here as evidence?
A. That may be, I do not know. I only examined the list of reports which were reported to me, and in which I made decisions on those lists. I examined the names, but I did not look at 30 or 35 lists in which the Minister decided the cases.
Q. And, the basis upon which you estimated the number of cases, that you decided to arrive at your figure of 88 death sentences approved by you did you do that on the basis of names in the document, that you remember or just how did you arrive at that figure?
A. No, I arrived at that figure because from the schedules of reports I recognized which had the lists of reports, that were made to me.
Q. How do you recognize that?
A. The first, the witness Max Schaefer testified as to that. Then, for example, the list on sheet No. 77, I believe, yes, that is it; that is headed "Report to the Under-Secretary".
Q. Mr. Klemm--
A. (Interposing) The list on sheet No. 91 also is entitled "Report to the Under-Secretary."
Q. Yes, I think that is sufficient to illustrate your point.
A. (Interposing) On the other list, it also says "Report to the Minister."
Q. That is very clear, Mr. Klemm. You did say, however, on Thursday morning that these notations of yours on the death sentence lists were in the letter "T" is noted down as being decided, those notations were made by you in the same manner whether the cases were reported to you for decision oh to Thierack for decision.
Accepting your statement there, as being true, then, I take it nothing appears from your decisions and notations on those lists of a death sentence being approved along side each of the 2390 names to distinguish who made the decision, you or Thierack, if you made the notations in the some manner. They all look the same do they not?
A. Yes, of course because we received the sheets oh which the schedule of reports were listed, and in one case, I was sitting upstairs in the room of the Minister and wrote down his decision and in the other case, I was sitting in my office and had the list in front of me and in the same way I made the notations.
Q Now, Mr. Klemm, since we agree that on these death lists the notations of a decision of death lo. k about the same, whether the decision was made by you or by Thierack -- what do we have beside your statement that 85 of them all that were decided by you?
A Well, you can add that up on the basis of these lists. The other lists are expressly, first of all, headed "Reports to the Minister", or, in one or two cases, it cannot be clearly recognized; but then it can be seen from the fact that in this list of reports doubtful cases are mentioned too, and on which I did not decide.
Q Regardless of whether you or Thierack did decide, you did, however, make the same notations on the paper?
A Yes, why shouldn't I?
Q Now, you further have said, Mr. Klemm, that these lists that we are discussing only two copies were submitted by Departments III and IV to the executive level for decision: one went to you --
A No, three --
Q Just a moment, Mr. Klemm. One went to you, and one went to Thierack, and Departments III and IV kept one copy for their use.
A Yes.
Q So of the two copies of these death sentences that were sent out for executive approval you got one of them, and Thierack got the other one.
A Thierack usually received the original, and I the carbon copyor the other way around. It differed.
Q Yes, yes. Also you stated last Thursday, and you reaffirmed it today, that after you got these lists and Thierack got his copy of the same, that on those -- this is when cases were being reported to Thierack rather than to you -- that you sat with Thierack, during the consultations by the Referents or the Department heads of Divisions LLL and IV, you sai in. Now, at such joint hearings with Thierack oh the question of whether or not these death sentences should be approved, and Thierack, who at least nominally was the one being reported to, did he ever turn to you for advice or consultation on a case?
A I have already stated that in as far as smooth cases were concerned they were reported one after the other, and the Minister made his decision without discussion. There were, from time to time discussions, especially after going into doubtful cases.
Q And when these doubtful, vague and uncertain cases came up during these hearings, with you sitting in as you have described, did Thierack turn to you then and discuss matters?
A In those cases Thierack further asked one or the other or all of them -- the Referent, the Division Chief or the Under Sekretary, as to their opinion, what was their attitude toward the case. That practice varied.
Q By under Sekretary, do you mean yourself?
A Yes, I do.
Q Then your answer to my question is, I take it, yes -- he did turn to you for advice and consultation?
A Not in every case. He only wanted to have the attitude of the individual, how each of us was thinking about the case. It even happened that those Referenten who were waiting for the next reports and who were sitting more toward the back, and not directly at the desk, that is, opposite the desk, that he asked them, too. "What do you think about this case" - and then he made his decision without letting it be recognized with whom he agreed; but it also happened that he refused to accept one or the other opinion in a very rough and tactless manner.
Q So we have the situation, Mr. Klemm, that on days when you were not being reported to one cases, and, consequently, were not making the decision in your own name, that you sat in with Thierack when cases were being reported to him, and that, at least in some cases, you were asked for your official advice.
.. is that correct?
A Of course, there were such cases.
Q Now, Mr. Klemm, on the afternoon of the 10th of July, last Thursday, you were discussing with your counsel the Bonus case. You described the court prevailed that that case went through and, to your mind, the obvious injustice of it, and how you could not conceive of a death sentence being justified in that case, but that the Gauleiter interfered, Hitler interfered, the case was tried over again a second time, and finally after the second trial Thierack decided, after reading a letter from the Gauleiter Sturtz, that there was just no way out of imposing a death sentence in that case and he marked the case for execution, and when you saw the letter from the Gauleiter together with the notation for execution from Thierack which came to you, that you went to Thierack and told him that a death sentence was impossible in that case. Taking up from that point I will read to you briefly a couple of sentences of what you s aid last Thursday. I am reading now from page 4992 of the English transcript:
"When the letter came to me on the Bonus case with Thierack's note on it I went to Thierack and told him that was impossible because after he had once taken the view that eight years' penitentiary was a suitable punishment in that case he could not now consider the death sentence suitable. Thierack said to me that he had though t the matter over. He could not see that his view that the sentence should be commuted had been wrong. There was no point in reporting to Hitler on the case because Hitler would only sustain Gauleiter Sturtz's view. He, Thierack could no longer with a clear conscience suggest that the death sentence should be commuted."
And then you finish, Mr. Klemm, by saying that:
"It was impossible for me, therefore, to persuade Thierack to adhere to his former view."
Now, all that went on with regard to the Bonus case, Mr. Klemm, and there was a great deal of pulling and halting or not that defendant should be sentenced to death, wasn't there; you did, as you describe here, do your best to try to get that sentence commuted didn't you?
A Bonus had been sentenced to death. The only question was whether a clemency plea should be granted or not, and the only thing I could do in this case - whatever I could do in the case I did. I tried to persuade Thierack to report to the Fuehrer and to suggest that clemency be granted.
Q Mr. Klemm, why did you get so interested in trying to commute Bonus's death sentence?
A I considered it to be an obvious justice that if the Minister once said, "I want to commute this death sentence into a penitentiary sentence" -- that then he would adhere to this point of view. That was my opinion.
Q But Bonus was, in fact, executed - was he not?
A I cannot recall that any more.
Q What would be your official presumption, then, if Bonus's clemency plea finally went out of the Ministry of Justice officially marked "For Execution"? Would you presume that tho man was executed?
A That depends upon the time when this was issued. If this happened during the last month or weeks before the surrender then it is possible, if it was announced then, that he was not executed. I cannot remember that for sure any more, when it happened.
Q In any event, Mr. Klemm, Hitler, Gauleiter Sturtz on one side, you and Dr, Thierack on the other side, were at one time in extreme disagreement as to whether or not Bonus should be executed, were you not, and later Thierack changed his mind despite anything you could do. That is pretty correct, isn't it?
A Yes, it is. I could not do anything else.
Q Now, Mr. Klemm, earlier that same afternoon, some time before your discussion of the Bonus case, you made the following statement in response to a question by Dr. Schilf - and I am going to read it to you; it is on page 4985 of the transcript. Speaking of yourself you say:
"I myself could not even take up a more severe attitude because concerning sentence matters only clear cases were submitted to me. That is to say, cases where the head of the Department took the view that the death sentence would have to be executed and clemency was out of the question."
Now, further on that same afternoon, Mr. Klemm, you made the following statement - I am reading now from page 4987 of the record. You say:
"On no account can Altmeyer have suggested clemency to me for only clear cases were reported to me."
Now I ask you, Mr. Klemm in the absence of the Minister you could deputize for him, you have so stated. Passing on death sentences was included in your statement. You also said that you only had jurisdiction of clear-cut cases about which there were no questions. How, then do you explain your rather elaborate negotiation with the Bonus case, in which we have just discussed here the doubt was so great that you carried the argument to Thierack at great length, and for other high officials of the government could not agree. Was that a clear-cut case, Mr. Klemm? It was submitted to you.
A It was not submitted to me at all. But I heard about the case for the first time when it was reported to the Minister, and there if I remember correctly - yes I do - it was reported as a doubtful case, and then the first result was Thierack's opinion to commute it into a penitentiary sentence. This case had to be submitted to Hitler and the instruction was, therefore, that the opinion of the Gauleiter had to be added, so it was asked for, and when this case was received, the case of the Gaulieter Sturtz, it was submitted to me, and contrary to the result after the report to him, or rather after his decision on the basis of this report to me, he had written on it "Execution".And because he had written it down, when I received this (because I received the mail) I went to him and discussed it with him.
Q. And this case cane to you in the normal course of business after all those disagreeing opinions were narked on it?
A. Yes.
Q. When do you consider a case as getting doubtful, Mr. Klemm?
A. A case is doubtful if one of the participating agencies is against the execution and in favor of clemency. I have already stated that very extensively in my direct examination.
Q. Yes. Now how many government officials participated in this case with conflicting opinions? I believe you had a gauleiter and Hitler himself on one side and you and Trierack on the other at another time, and yet the case came to you in the normal course of business. You call that clear cut?
A. Hitler did not see the case at all because Trierack did refuse to submit it to Hitler at all. The gauleiter who had to state his opinion basically does not belong on principle to the agencies of the state which have to state their opinion in regard to a sentence, but they are the court, the presiding judge of the court, the chief public prosecutor, the general public prosecutor, the referent, the division chief, to this extent, all these agencies agreed and nobody suggested the granting of a clemency plea. Then it is a clear case but in this case it was like this; Thierack had already decided: I suggest a commuting of the sentence-and so that it would be granted the case had to be reported to Hitler.
Only at this stage of the negotiations did they have to ask for the opinion of the gauleiter in regard to the suggestion for commuting the sentence because Hitler wanted to have the opinion of the competent gauleiter. Therefore, before the matter was reported to Hitler-
Q. One moment, please. We have been over all this before with regard to what happened in the Bonus case.
I only have one further question. In view of the extremely complicated history that the Bonus case had and the absolute differences of opinion between Gauleiter Sturtz, yourself and Thierack, on the very vital point of whether or not the man should be sentenced to death, how did you get involved in such a clear cut case if you did not become involved in the official course of your work? You have already said twice that the case was submitted to you. Assuming what you say is true and the case was submitted to you, do you call that case doubtful or clear cut?
A. The letter from Gauleiter Sturtz was submitted to me because all the mail that the Minister had received came down to me from his office and when on this letter I saw the notation "Execution," I took this letter out of the mail folder of incoming mail and went up to Thierack and asked him why he changed his former opinion and whether this case should not be reported, after all, to Hitler with the suggestion for clemency.
Q. In other words, with regard to the Bonus case, you did make an official suggestion to Thierack as to its disposition?
A. Absolutely not officially because the Minister had already decided and that is why I went up ;to him--in order to divert him from it. I was not involved.
Q. Mr. Klemm, if it wasn't an official suggestion or advice, what was it--social? Or don't you consider a death sentence an official matter?
A. Of course it is official but after all the case had been concluded and decided and that is why I went up--in order to change-in order ot again throw over this final decision and in that I failed.
BY MR. LA FOLLETTE:
Q. Now we will leave this disturbing Exhibit 252 a minute and consider the matter of the Alied fliers.
That document is Exhibit 108 and 109. NG-364 was the circular letter from Bormann dated June 8, 1944. And Exhibit 109 is Document 635-PS. You testified yesterday-- I mean Friday morning that the notation by Thierack was on Exhibit 108 reading" IV Circular with the addition that such cases are to be submitted to me when they arrive for an examination of the question of quashing." That was on there when the document reached you. We are in agreement on that, are we not?
A. It was an instruction to Division IV to draft such a circular decree with these contents for the purpose of examining whether the case should be quashed.
Q. Yes. Now then, you also said, "From the hint that Lammers gives in this letter--(That is Exhibit 109)--that Himmler had already informed his police also on the basis of Bormann's circular letter, it is quite clear to me that such denunciations to the administration of justice were also not to be made in the future but of course it could happen that the administration of justice found out about these on its own and took them up, but incidentally Hitler backed that action itself." Do you recall, did you do anything after June 4, 1944 when you received this notation from Thierack about this subject of quashing sentences or did you let the matter drop?
A. I was not able to do anything, since the Minister had ordered that this circular decree would be drafted and these cases had to be reported too because according to the circular letter by Bormann to the party, and according to the information by Lammers that Hitler had instructed the police, the public prosecution had to get into difficulties if it found out about such a case and if it started an investigation.
Q. Did you personally take any steps to see that there would be no prosecutions against anyone who followed Bormann's instructions?
A. I know for sure, as I have already described, that we did carry out a proceeding against the party and the police. We continued investigations, and furthermore, I testified that I cannot recall with certainty any more whether, on the other hand, one or two cases in which there was a special situation were quashed. I cannot recall that any more with certainty.
Q. But you yourself gave no instructions to prosecutors on this line because that was Thierack's order, wasn't that right?
A . Yes, that was Thierack's order that the public prosecutors were supposed to report on these natters; after they had reported the Minister had to decide whether the investigation and the case were to be continued or whether the proceedings should be quashed. This means that the instructions for the purpose of examination were for the purpose of examining whether the proceedings should be quashed.
MR. LAFOLLETTE: Yes. If your Honors please, I send to the Secretary General, for identification, document NG-1580, to be identified as Exhibit 529 and returned to me.
THE PRESIDENT: dr. Lafollette?
MR. LAFOLLETTE: Yes, Your Honor.
THE PRESIDENT: I am probably in error, but I wish you would straighten me out.
MR. LAFOLLETTE: Yes?
THE PRESIDENT: The last exhibit for identification that I find marked by the prosecution was 525. When were the ones between 525 and 529 identified?
MR. LAFOLLETTE: No. 526, Your Honor, was identified during the cross-examination of a witness for Dr. Schlegelberger.
THE PRESIDENT: Oh, yes.
MR. LAFOLLETTE: It was a picture of Dr. Schlegelberger in a uniform.
THE PRESIDENT: Oh yes, I find 526 and 527.
MR. LAFOLLETTE: Now then, 528 was this morning, Your Honor, that was NG-584. I did not make a distribution of that; I will before I leave the podium.
THE PRESIDENT: I have it straight now, thank you.
MR. LAFOLLETTE: Yes.
THE PRESIDENT: And the document number of No. 529, please?
MR. LAFOLLETTE: No. 1580-MG.
THE PRESIDENT: Thank you.
MR. LAFOLLETTE: Here are the English copies, to be distributed to the Bench, one to the English court reporters, one to the English interpreters, and I think there arc two for the Secretary General.
THE PRESIDENT: You haven't passed up to us 528 yet, have you?
MR. LAFOLLETTE: No I have not, Your Honor; I have not.
THE PRESIDENT: All right.
MR. LAFOLLETTE: Now here at the German copies. Does the Secretary General keep a German or only an English? Only an English. Here is one for the interpreters, one for the reporters, and the balance to be given to Dr. Schilf to be distributed.
Now, then would you pass this to Mr. Klemm please?
(Document submitted to the defendant Klemm)
BY MR. LAFOLLETTE:
Q You now have before you document NG-1580, which is marked for identification 529. I read for you the -- I withdraw that.
MR. LAFOLLETTE: I am entitled to say, Your Honors, that the original exhibit which the defendant now has before him has the date Munich, 16/8/44, on it. It does not carry it on the English mimeographed copies. I don't know whether it is on the German or not. Is it on the German, Dr. Schilf? A date? There is a date on the German. There is no date on your English text, but that is what it is on the original exhibit.
Q (Continuing) The introductory paragraph I read in English as follows:
"At his visit here today, Ministerial Councillor Meitzsche put up the following points for discussion."
That is the same Mietzsche that you told me this morning you knew and was in the Ministry of Justice until at least late 1944. Then, I read the following first paragraph:
"Whenever flyers who had participated in a terror-raid have been killed by the population, the submission of a detailed report by the police cannot be dispensed with-- the decision of State Secretary Klemm. The reason is that punishable behavior that is, acts from egotistical motives, such a robbing the dead, deeds of vengeance gainst Germans who afterwards are dressed in the uniform of killed allied flyers, must be excluded with certainty."
If those things were to be excluded, were you concerned with the punishment of any one of the populace who killed and allied flyer?
A You have to understand this point as follows. As can be seen from the instruction -- namely, the instruction that Himmler was supposed to inform his police -- this was the pretext we used in order to cause the police to report the facts to us. That was the reason. We could not say to the police, "We do not submit to what you are doing", but we had to state certain reasons. Therefore owe stated those reasons so that the police would submit all reports to us.
Q All right.
A That was the train of thought which led to this notation.
Q Thank you.
With reference to Exhibit 77, which was NG-414, document book I-C-- this was an approval given by the Party Chancery of a law by the Reich Ministry of Justice to make certain previsions of the law with reference to treason retroactive particularly in the East. The other day you said that you had signed the letter, but that in your opinion Bormann had made all the notations and then you had written and signed the letter. In view of your joining with Bormann in signing the letter to the Gauleiters, in view of the fact that Freisler asked for a man capable of making a decision to come to a meeting to discuss penal reform, and then that you were sent, are you still of the opinion that Bormann wrote this letter or made the notations and all you did was to write out what Bormann wanted to say about it?
A Since we were not authorized to agree or refuse to agree, to drafts of laws, and since the letter of application by the Party Chancellery was answered about one month--I estimate about a month because I am not sure I remember it correctly--since the draft was answered about one month after it had been sent, I have to assume that Bormann had already written his opinion in the margin, so that the only thing to be done was to forward his decision.
To be sire, without having the Party Chancellery files at my disposal, I cannot state anything about it with absolute certainty.
Q If Bormann had written his notation on the letter which he received, under the office practice wouldn't you have said something in your letter that you were returning the Ministry of Justice letter with Bormann's notations? Or, would you have said something on this letter about Bormann's notations which caused you to draft the letter? Or wasn't there any such practice?
A This could be seen from the outside appearance of the letter. It was on the letterhead of the Chief of the Party Chancellery, and in front of my name are the letters "I.A.", that is "im Auftrag," " for-- by", or "on order. In other words, it is not my own opinion that I am reporting as an official opinion, but I am reporting by order, as can be seen from the letterhead and the letters in front of the signature; I am reporting the opinion of the Chief of the Party Chancellery. If I had reported my own opinion, this "I.A." "on order", "im Auftrag" would have been emitted.
Q Did you write letters without this "I.A." on it, at the Party Chancellery?
AAt the moment I cannot recall an individual case. It is possible, but in that case 0 probably would have taken stationery with a different letterhead, and it would not have said "Chief of the Party Chancellery", but only "Party Chancellery of the NSDAP." However, such details as to whether and when and how often I used that type of stationery, I cannot recall any longer.
Q Now, you explained the letter that Thierack wrote to you on the- 1st of December 1942--that is Exhibit 296, NG-324-- by saying in substance that the Gauleiter of Pomerania had wanted to hang plunderers on the spot, and that you and Thierack had gotten together and you had asked Thierack to send you this letter so that you could send it out or have some answer for the Gaulieter and keep Bormann from supporting the Gauleiter's position.