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.
That is correct?
A Yes, I told him that he should write me an answering letter which would put me in the position of being able to suggest that this plan of the Gauleiter Schwede-Coburg should not be supported.
Q. And you also told us that with reference to the document, Exhibit 75, NG 102, that is the Schlegelberger plan for commission for commuting executions, that you had to write it in a way that Bormann wouldn't get onto it. If Bormann is the icy, hard man that you have described him, and I think properly, weren't you a little brave in constantly attempting to get behind Bormann's back by this method while you were in the Party Chancellery?
A. The question did not come through over the translation system. The question did come through, but not what was the prerequisite, what went in front of it. I didn't understand the translation of the two things that you were opposing to each ocher.
Q. Let's try again. It is my fault. You said that when you wrote the letter of June 19,1942 for the Party chancellery turning down the Schlegelberger plan for administering criminal sentences that you had to write in in a way that Bormann would accept it. And now you say that in the letter than came to Borman's Party Chancellery from a Gauleiter who wanted to hang people on the spot you got to Thierack personally so that he would write you a letter which you could fool the Gauleiter and Bormann with. I say to you, wasn't that a pretty dangerous thing for you to be doing if Bormann is as mean as you say he is?
A. Well, the situation was different. In the first case it was a question of having the opinion of the Ministry of Justice there in the draft. In the second case, in the letter from Schwede-Coburg the problem was that there was a suggestion made by a Party office, and I only gave the Minister of Justice an opportunity to state his opinion in regard to the suggestion of the Gauleiter, and only then I submitted the letter to Bormann with my suggestion. That is the difference. And the material, factual material against the suggestion of the Gauleiter could only be given to me by the Ministry of Justice in the particular case.
Q. Now you testified yesterday that at the end of the day, that -- rather, I beg your pardon -- on Thursday that the agreement between Hitler and the Ministry of Justice had reached the point where Hitler only denied one request that Theirack sent him for commutation out of 290.
A. Yes. At least, that is what is apparent from the letter. What is stated in the letter, the figure that is quoted, in part must refer to a time when I was not the undersecretary, according to what is said in the letter.
Q. And then after that, late in November, 1944, Hitler delegated completely to the Ministry of Justice to Thierack the complete right of commutation, and at the same time the right was given to the Gauleiters or the governors, rather, of the Eastern Territories? That is correct?
A. No, that is not correct. Thierack was granted the light with some exceptions. This is apparent already from Meissner's letter which is in the document. The Gauleiters never had the right, but rather the Reichstatthalter, the Reich Governors and Oberpresidenten. Even to that extent as one person held both offices, they have the right in their office as Reichstatthalter and Oberpraesidenten, but this right had been transferred to them already before the time when Thierack became Minister of Justice. That is before August 1942.
Q. Yes, that's right. But after the Hitler order in 1944 which permitted Thierack to exercise all the power of clemency he still had to have the approval of the Gauleiter. That is correct, is it not? Otherwise he would go to Hitler and complain, and you testified that if he did, then of course Hitler would order Thierack to change his opinion. Now I am sure that that was your testimony. What I am asking you is is that the constitutional state that you wanted?
A. No. This opinion of the Gauleiter and this permission that they could have a word in the commutation, I did not recommend that at all. I would be the lest one who would defend this participation of the Gauleiters with even one word.
Q. Did you complain to Thierack about it?
A. I did complain. Not only did I complain to Thierack, but Thierack himself often complained that he had to ask the Gauleiters and ask for their opinion, and I also recall cases where in spite of the negative attitude of the Gauleiter, the case was forwarded to Hitler and in which the clemency plea was granted. I have already described such a case which I myself forced through. This was the Kreiling case in which Goebbels as Gauleiter had objected, and we in spite of that succeeded in having Hitler grant a clemency plea.
Q. Herr Klemm, we will save ourselves, both of us, a lot of trouble with an Exhibit. I will read to you, or hand to you, an exhibit which purports to be the notes of a. conference of superior judges and general public prosecutors held at Weimar on the 3d and 4th of February, 1944. On Page 5 of the translation, which I think is at the bottom of Page 5 of the German, there is a paragraph that says Staatssekretaer Klemm made a speech. Do you find that?
A. Yes, I do.
THE PRESIDENT: Are you marking this for identification?
MR. LA FOLLETTE: I am not yet, Your Honor, unless the witness -- if the witness denies that it states the truth if he -- I am trying to avoid it.
THE PRESIDENT: I should like to know now concerning what instrument, how identified, you are speaking. You don't have to offer it merely because you identify it.
MR. LA FOLLETTE: I realize that, but I have to distribute it. May I proceed and see how the witness will testify, Your Honor?
BY MR. LA FOLLETTE:
Q. Staatssekretaer Klemm stated that no one could expect him to issue a program. He had no program. He considered his only and most noble task that of being an assistant to the Ministry. Does that correctly state what you say, and does that correctly state your position towards Thierack? That is all I want to know.
A. This does agree literally, and this can be seen also from the fact that in the German text the contents of this speech are given in the indirect sentence construction. It said also that he touched different rumors which were connected with his appointment, then one or the other thing is stated. In other words, what is written here is a change between parts which I spoke and descriptions of the contents of what I said.
Q. Let me ask you just this. Did you at that time on the 3rd and 4th of March have no program of your own, other than that you considered it your most noble task to be the first assistant to the Minister? Did you or did you not ?
A. Yes. I was of the opinion that at that time from the point of view of the constitutional state the Administration of Justice was constitutional and I was of the opinion that the Minister has to be supported in this and that this is a task of an Under-secretary.
Q. That is all.
A . But I stated specifically that I do not have a program, especially in consideration of what is said a little bit later on in this speech that I might be considered coming to the Ministry of Justice as an exponent of Party policy because I came from the Party Chancellery. That is the meaning of what was said there.
Q. That was on the 3rd and 4th of February at Weimar, 1944?
A. When I entered my office.
Q. Now on Friday afternoon you discussed the Judges Letters and you said, or rather , Dr. Schilf said, "The Prosecution regards the Judges letters from the point of view of their content as well as their form as an illegal pressure exercised on judges at that time. It asserts that it was a serious intervention in the independence of judges. When you were concerned with the Judges' Letters did you consider that effect? Did you fear it or did you support it? Or did you see those matters from a different point of view than the Prosecution asserts here?
A. I wish to say the following about that -- the thought never occurred to me that the impression could be created at all which the Prosecution raises today. Now also on Thursday the 10th in the afternoon you said this, discussing the second case that Altmeyer had submitted to you, the plunderers case' case. I am supposed to have said ---- this is what Altmeyer said --- Plunderers in principle should have their death sentence executed immediately. I could not possibly have put forward that theory in an uncompromising way, for I could not defend myself or give orders contrary to the opinion which , as the Minister's own opinion, had been given in the Judges' Letters and that was in the Judges' Letter Exhibit 96, NG 321, Book 1-D.
Now is the judge's letter binding as you said in discussing the Altmeyer matter, or is it not binding as you said on Friday morning?
A For me, it was binding. For me as Under-Secretary, that is as an administrative officer, but it was not binding for the independent judges. To the outside, of course, I had to represent the point of view of the Minister in that matter, but any judge could tell me at any time, "I am an independent judge and I am of a different opinion." That is the difference.
Q In considering the death penalty which Altmeyer submitted to you, do you consider that the judge's letter which had been sent a few months ago before that was binding on you, is that correct? Do I understand you right?
A Yes.
Q All right. Thank you.
A Binding if the question was to represent this point of view to the outside world.
Q On Friday morning, and I think on Friday afternoon, you went over the facts in the Sonnenberg case with Dr. Schilf. Did you or did you not, on the 17th of January 1945, yourself sign an instruction marked "Confidential," addressed to the President of the Supreme Court, the Chief Reich Prosecutor, the President of the People's Court and the Chief Public Prosecutor at the People's Court, the President of the Court of Appeals and the Oberlandesericht, and the Chief Public Prosecutors at the Court of Appeals. Subject: Measures arising in connection with death sentence during the war.
I hand you the original, exhibit, NG--746, which I ask to have identified as Prosecution's Exhibit No. 530, and ask you if that is the document which I have been describing. It's signed by you, dated 17th of January 1945.
(The exhibit if offered to the defendant Klemm)
A I can no longer recall the contents of this thing. May I just leaf through it first?
Q Yes. But it is signed, by you, is it not? Will you just answer me that?
A It says here -- it seems to be mimeographed or a printed paragraph -- it's typewritten underneath: Klemm.
Q Acting, (signed) Klemm.
A I can only say whether I signed it when I see the handwritten original or photostat thereof.
Q Does it say: Certified (signature) Giese, Justice Clerk? Excuse me, Mr. Klemm, on Page 12 under the words "Acting (signed) Klemm," which you say are in some form of type, is there the circular seal of the Reich Ministry of Justice and are there the words, "Certified (signature) Giese, Justice Clerk?"
A It says, "Reich Ministry of Justice, Ministerial Chancellery, Certified Giese, Justice Clerk."
Q Will you distribute these, please?
(Copies are distributed to the Court.)
A This photostat is illegible in part. May I receive a German copy of the document?
Q Oh yes. I have just had them distributed.
Will you turn to Page 3 of the original, or what is marked Page 3 of the German Document; not the first letter. It's on page 4 of the English it provides for the execution. Paragraph 6 says:
"Death sentences will be executed by the executioner by decapitation. I reserve the right of decreeing exceptional execution for individual cases by shooting or hanging.
"8.) Death sentences may be carried out at any time of the day or night, if possible."
Then on page 4, paragraph 14 (1):
"When the convict is ordered to be shot, the execution authorities will immediately contact the nearest Security Police Headquarters or the commander of the Wehrmacht garrison as to the time and place of the shooting."
Then you find attached to the exhibit an enclosure.
THE PRESIDENT: Could you not give us the identification number now that you have distributed this?
MR. LA FOLLETTE: I thought I did, Your Honor. I asked that it be identified as No. 530.
THE PRESIDENT:NG-476 is 530?
MR. LA FOLLETTE: It's 530, yes, your Honor.
THE PRESIDENT: You may postpone your next question until after the recess. There will be a 15 minute recess.
(A recess was taken.)
THE MARSHAL: Persons in the court-room will please find their seats.
The Tribunal is again in session.
Q. I simply want to ask you with reference to exhibit which is marked for identification, 530, NG 746, if * * that is the order which you put out as acting Minister on 17 January 1945?
A. It is possible that I did sign that decree, but I would like you to allow me to give you my views on the matter. The Prosecutor had mentioned the subject of Sonnenburg. The order which I have before me is, in fact, a circular order which summarized all these provisions which were sent to the executing authorities when a death sentence had to be carried out. That order states precisely on page 5 of the German copy, that is Roman numeral II, A, number 6, paragraph 1, that a death sentence is carried out by the executioner by beheading. Paragraph 2 says, shooting is considered when execution by beheading would difficult or if it would mean delay or if other particular circumstances are in favor of not adopting the legal method of execution. Shooting is carried out by a police detachment or by a detachment of the armed forces, Wehrmacht. I can remember that those provisions were introduced in case a man who had been sentenced to death, and who was to be executed, could not be taken to the place of execution because transport had been interrupted for other reasons. In that case the execution was to be carried out by shooting by the police or by the Wehrmacht. Watch time only individual cases were concerned, for which the death sentence had already been passed and the clemency plea had been rejected.
THE PRESIDENT: Mr. Klemm, the question which was directly put to you was whether or not you signed this document, and you said it is possible you may have. Now, is it or is it not your signature on the document?