Court No. III, Case No. 3.
if they had any objections to the judiciary, they should address themselves only to me.
Q Was this obligation fulfilled in Hamburg?
A Yes, to its fullest extent. Neither the police nor the party, nor the press with whom I had made an agreement of that kind did not in even one case try to criticize a judge or a sentence.
Q In order to reinforce these facts, I shall submit a number of affidavits which shall also testify to this fact.
A Then, and this too can be seen from NG-389 -- eight days later at a meeting of all presidents of the district courts of appeal in Berlin who were discussing the situation which had arisen, I requested that similar steps be taken throughout the Reich. But, as can be seen from the situation report, the course of the meeting did not restore the inner strength to the participants.
Q Herr Dr. Rothenberger, in organic connection with these steps that you took, we now come to the guidance orders which the Prosecution has submitted as charges against you in this trial. The question is now what you intended to do with these guidance orders. Would you please in detail describe your opinion -- your attitude of this?
A If to the outside world I assumed the responsibility for the Administration of Justice in Hamburg in order to protect the individual judge, -- in order to be able to assume this responsibility -- I had to have knowledge of the proceedings in which such an attack could be expected or feared. Therefore, for one thing I issued the regulation, I believe that is contained in NG-389, that in case a judge was attacked or feared such an attack, and wanted to get my advice, that I would be at his disposal personally; that is in Enclosure No. 1. Secondly, and that is in Enclosure 2, it says there "in consideration of the present situation", I considered it necessary that I be currently informed about those proceedings in which such an attack could be feared. The list of these proceedings is cited in each case in detail in the enclosure. Thereby I simultaneously wanted to remove an unsatisfactory Court No. III, Case No. 3.condition which had been created by an order by Minister Guertner already from 1939; and this has already been mentioned in this trial in NG-445. Herr Minister Guertner had ordered that each individual prosecutor should get in touch with the individual judge and from this document it is evident that considerable unsatisfactory conditions had arisen due to that -- that immediately before the trial or even during the trial; and, sometimes after the trial, and before the consultation of judges, a discussion between the prosecution and the judge took place.
I considered that to be wrong.
Court No. III, Case No. 3.
I considered it to be more correct in view of the situation that such a discussion should take place a long time before the trial, not between the individual judges and the prosecutor, but on a higher level, namely, between the chiefs of the offices, so that there would be no possibility to exert an influence on the individual judge in any way.
Q Dr. Rothenberger, in your opinion was it a guidance even in the more lenient form which you desired?
A Of course, guidance is guidance. An absolute and complete independence of the judge is possible only in normal conditions of peace, and we did not have those conditions after the Hitler speech. Now, one could only strive for the aim of saving as much of the independence as was possible under the situation that prevailed at that time. The method which I chose was, on the one hand, supposed to protect the individual judge, and, on the other hand, it was supposed to maintain his own feeling of responsibility.
Q Please describe to the Tribunal the course of such a discussion as you handled it.
A I only handled it for three months myself, because in August I was transferred to Berlin. During that time the meetings were about as follows. I myself was a judge, and therefore I had an understanding of the qualities that were required for a judge. The General Public Prosecutor was present, the Chief Public Prosecutors, the Senior Public Prosecutors, the Oberstaatsanwaelte. At the meeting, cases were discussed which were pending or which were to be tried during the next two weeks, as well as cases which had been decided during the past week or two. Then, on the basis of these cases, general questions of law and justice and questions of the extent of penalties were discussed in order to achieve uniformity in the Administration of Justice as far as possible. We never discussed the facts, because the facts could only be clarified and decided upon during the trial. My successor continued in the manner in which I had handled that.
Q Did you restrain yourself in order to avoid any impression of trying to exert influence?
Court No. III, Case No. 3.
A In general I restrained myself and only stated my opinion carefully if very basic legal questions were concerned.
Q Dr. Rothenberger, you know that the guidance of the administration of the law was brought up by the prosecution in this connection by saying that it onesidedly led to a more severe jurisdiction. Could you please state whether this guidance of the administration of the laws led to such a result in Hamburg?
A That was not the case in Hamburg. I shall prove this by means of different documents and affidavits.
Q Now, later on, in Berlin, you took similar measures, in the fall of 1942, in October. Would you please make some statements about this? You know that the expert witness, Berl, made some statements about that here.
A The expert witness Behl, here in the witness box, unfortunately, read only a very small excerpt from an order which I drew up on 13 October 1942; and in answer to a question by my defense counsel as to whether he knew of the intentions which the author of this order might have had, he answered "no". If he would have read this entire order out here, these intentions would not have remained hidden from him. From this order of 13 October 1942, it is apparent that this guidance order was issued according to the same points of view as I have just described them. I don't know whether it is necessary for me to read this order. My defense counsel will submit this guidance order as an exhibit.
Q Is it correct that in this guidance order you expressly excluded that the facts should be determined and that the determination of the facts should be left up to the trial?
A Since it was a war emergency measure, I emphasized that the guidance should be within limits and tactful, it should not remove the independence of the judges, that every judge should remain conscious of his own responsibility, that the determination of the facts should be excluded from every guidance, and that the guidance should be limited to questions of basic importance.
Court No. III, Case No. 3.
Q Do you speak in any way about a more severe or stricter jurisdiction against Jews or foreigners, that this was necessary?
A There is no word at all about a severe jurisdiction, nor about a special jurisdiction against Jews or foreigners.
Q Did you participate in the guidance of jurisdiction on the part of the Ministry?
A No.
Q You did not do so?
A No, I did not, because I did not have anything to do with the guidance of penal jurisdiction in the Ministry. This did not become a practical problem in the field of civil administration of the law.
DR. WANDSCHNEIDER: To what extent such guidance takes place today in the same manner, even though done under different points of view-I shall submit documents to that effect in order to bring forth evidence that the same conditions bring about the same measures in German today, too.
We now come to a second question that refers to the memorandum itself, Mr. President, the memorandum as such which the prosecution has already described as a "peculiar" document; and, if I may add, it certainly is a peculiar document. It has to be discussed in detail in this connection, because of the contradictions which doubtlessly appear at first, and I respectfully request the Tribunal to tell me whether I should start the discussion of this document today or not.
THE PRESIDENT: The Tribunal will recess until tomorrow morning at 9:30.
(At 1630 hours, 16 July 1947, a recess was taken until 0930 hours, 17 July 1947).
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al., Defendants, sitting at Nuernberg, Germany, on 17 July 1947, 0930-1630, Justice Brand presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
MR. MARSHAL: May it please Your Honors, all the defendants are present in the court room with the exception of the defendant Engert, who is absent due to illness, and the defendant Lautz, who has been excused by the Tribunal.
THE PRESIDENT: The defendant Lautz has been excused at his own request for this day only in order to assist him in the preparation of his defense. The defendant Engert has been excused temporarily. Proper notation will be made.
You may proceed.
CURT ROTHENBERGER - Resumed DIRECT EXAMINATION (Continued) BY DR. WANDSCHNEIDER: (Attorney for Defendant Rothenberger) May it please the Tribunal, yesterday the document NG-392, Exhibit 373 was discussed and I want to read two small portions of it into the record.
It says in this record of Dr. Rothenberger, first, "the fact that the Reich Ministry of Justice formed a small commission in order to prepare a basic reform of the Administration of Justice was welcomed with great relief and joy; the greater was the disappointment about the fact that the work could not be continued as rapidly as had been expected." Next, under No. 4 of this situation report it says in a brief sentence: "That the RSHA also has worked out its own plans for training all groups of the police will be known there;
therefore, I believe that the reform of training and education of lawyers is urgent."
Q. Dr. Rothenberger, would you please state your opinion in regard to a document which we overlooked yesterday; that concerns Exhibit 472, Volume III-A of the supplementary document book, page 30. This concerns a letter by an SS leader to you. Would you please state your opinion in regard to this letter and briefly report on its contents?
A. I no longer remember the complete case, especially since my letter to which this letter here is an answer was not introduced by the Prosecution. From my general attitude, which can be seen from the different situation reports which were discussed yesterday, I, however, believe that I can imagine in this case too, the reaction which I brought about here, as in many previous cases, I probably found out from the newspapers that the Reich Fuehrer SS, the Reich Leader SS, had ordered that some prisoner who had been condemned had been shot because of resistance while on flight. In all such cases which I heard about, I immediately opposed such action; and in this case too, I probably turned to the SS judge and protested against this action. This can be seen from Paragraph 2 of this exhibit, since the SS judge thereupon saw it necessary to explain the facts to me, and referred to the fact that this shooting and the publication of this shooting too, was due to an order by the Fuehrer. Further more, it can be seen from this exhibit that I objected against the publication of such measures, for in paragraph 1 of the exhibit it says -- that I required that such announcements, will not take place in order not to reduce the authority of the courts. In any case, it is apparent from this exhibit that I succeeded by taking this step in having the Reich Fuehrer SS issue the instruction -- that it should not be published.
DR. WANDSCHNEIDER: Thank you very much. Yesterday the expert witness Behl's testimony in connection with the guidance orders was discussed For the purpose of completeness, I just want to state the page numbers of the transcript on which the testimony of the witness Behl is.
It is the transcript on which the testimony of the witness Behl is. It is the transcript of the court session here of 18 March 1947, page 562, in the English transcript. May I now ask to go into another question, that is the question of the memorandum written by Dr. Rothenberger. Since this memorandum is doubtlessly a document which requires a comment urgently, because there are apparently obvious contradictions contained in it, I therefore request that the Defendant be permitted to go into it in some detail. Therefore, I request this particularly because this memorandum was the basis for Hitler's appointment of the defendant Dr. Rothenberger as undersecretary.
THE PRESIDENT: I suggest to you that you permit the witness first to make a general explanation, which, of course, he is entitled to do, and then you -
DR. WANDSCHNEIDER: Excuse me, I didn't hear the translation of the English.
THE PRESIDENT: I will repeat; are you ready?
DR. WANDSCHNEIDER: Yes. That you very much, Your Honor.
THE PRESIDENT: I suggest to you that you permit him first to make such a general statement of explanation as is necessary and proper, and that you then inquire specifically of the particular statements which you desire explained, so that we may have definite questions and specific answers.
DR. WANDSCHNEIDER: Thank you very much, Your Honor. That is absolutely in accordance with my intentions.
BY DR. WANDSCHNEIDER:
Q. Dr. Rothenberger, would you please first make some general statement about your memorandum.
THE PRESIDENT: The exhibit number, please.
DR. WANDSCHNEIDER: We are concerned with NG-075, Exhibit 27, in Document Book I-B, page 1. I have submitted a list to the Court on which the documents which I shall mention are listed.
Please begin with your statement.
A. The memorandum to Hitler is a brief summary of what I had worked out during the previous years in Hamburg. The reason for my writing such a memorandum at all I believe I already indicated yesterday. I had pointed out that the development in the Reich up until 1942, when this memorandum was written, gave cause for growing dangers and misgivings for every jurist. Furthermore, I had pointed out how the Administration of Justice was pushed more and more into a defensive position by the party and by the SS and how the jurists, as well as all Germans, either acquiesced in this condition and this development or even went along with it, and how the Administration of Justice was more and more in retreat battles. I did not want to and could not go along with this line of action.
And I did not want that the Administration of Justice was again and again confronted with fair accomplish. The party and the SS concerned themselves with ideas for reforms of the administration of Justice and it was my opinion that the only office which was competent for this and an expert in the field was the Administration of Justice itself. And the starting point for the attempt to change the course of this development were my experiences which I had gathered in Hamburg and in England.
My conviction grew stronger and stronger to the effect that question of the position of the judge in a state was significant not only for the Administration of Justice itself but that it was a basic problem of political life in every state. Germany had always gone from one extreme to the other in politics and now we were experiencing, during the years 1933 and the subsequent years, the extreme of a power state. And one of the causes for this was, in ay conviction, that in Germany we were lacking a point of rest, an authority which, due to tradition and out of its independence, was in a position to influence the development critically. This impression in particular was very vivid to me from my experiences in England. Therefore, my belief that the idea of the so-called Judge-King in Germany too, if there was any chance at all, would exert an influence on the development. This memorandum represents a final warning to Hitler in order to hold him back from this development which had begun. If today I put the question to myself, whether I believed that I could convince Hitler at all from my knowledge that I have today, I, of course, have to answer no to that question. According to my knowledge at that time I hoped for it and I believe that the fact alone that I undertook such an attempt at all is the best proof for this; and my belief of the time will be understood on the basis of the experiences which I had gathered in Hamburg where it had been possible, by trying to swim against the current and to exert influence upon leading political personalities, that one could succeed there.
The aim of my memorandum was, in the final analysis, the same as has to be the aim of every state, namely, the rebuilding of an autonomous law which is independent of the form of government and without temporal limitation. In countries which have a tradition this may not be a problem at all, but in Germany this question had for decades been the problem, and already, since 1905, leading jurists in Germany had occupied themselves with this problem again and again.
If I had described this idea in my memorandum in very dry and bare words then this memorandum, as hundreds of others, would immediately have been thrown into the waste paper basket and I would have been described as a fool... Therefore, I had first to describe the means which could create the prerequisites for such a final condition and, therefore, I described the proximate aims which I wanted to reach first. I emphasized then first. In order to clarify to the Tribunal that the position of a judge in Germany is a completely different one than in England and I believe also than in the United States, I have to go into the historical development of the profession of a German judge, in a few words. I can do this more briefly since this historical development is indicated briefly in this memorandum; furthermore, because in a lengthy article which I wrote at that time, which will be submitted as an exhibit by my defense counsel, I went into this historical development in detail.
I, therefore, want to say here merely by a slogan, that once, due to the acceptance of the Roman law in Germany, in the 16th Century, which took place only on the Continent of Europe and not in England, and furthermore, caused by the development of the Prussian State, where the Administration of Justice, as I already emphasized yesterday, was only a stepchild; that due to those two circumstances the judges' profession played only a very modest and mediocre role. In Germany we had about 19,000 judges who belonged to the General Civil Service and who in no way differed due to their income or their position or their reputation from an absolutely average civil servant.
The essential factor in this development was that the practical course of the education of a judge in Germany to this very day brought about that only persons who were very average growing lawyers decided to take up the judge's profession.
If I may be permitted to do so, I would like to mention briefly how one becomes a judge in Germany. At the age of approximately at this time whether one wants to become a judge or not. If one does decide to become a judge one remains for a number of years-and at that time it was about five to eight years -- a so-called assistant judge, Hilfsrichter.
This means that one does exercise the functions of a judge, to be sure, but one can discharged one day. And then, in the course of years, one finally achieves being appointed a judge, and it only happened very rarely that a person who had been sitting as an assistant judge for a number of years was not appointed judge.
Then, when one finally become a judge, one received an income of about 300 marks. A fairly good skilled worker in Germany earned double amount. Therefore, one had to lead a very modest life. One was treated as civil servant to the extent that every year a so-called qualification or efficiency report had to be written about every judge. In other words, a report had to be made as to the qualifications of the judge. The superior of the judge had to go to the court session in order, as we expressed it, to examine the judge, that is, to examine whether the judge was able or not.
Then, the judge waited for his next promotion, which played a very decisive role for him and for his family, in view of his small income. There was a scale of promotions from the local court to the district court, to the district court of appeal, and finally, to the Reich supreme court.
This briefly described course of training thus demonstrates that the judge, in a quiet existence of a vicil servant, was employed only as a judge all the time, and this gave cause to the leading German jurists, since 1906, to do something about it. The first precursor of this idea was a certain Adikes. These jurists tried to suggest a basic alternation of this course.
Adikes was followed by an Undersecretary Muekel, and he in turn during the Weimar Republic, was followed by the then Reich Minister of Justice Dr. Schiffer, who today is again Minister of Justice in the Russian Zone of Occupation. All were of the same opinion that this position of the judge had to be changed fundamentally and that this would be possible only by a very incisive reduction of the number of judges.
If the Prosecution is charging me, I believe even in the indictment itself, with the fact that I, in very clear words, desired to change this condition, or suggested changing this condition by saying that not the salve of the drugstores but the knife of the surgeon, was needed, then I am in good company in so saying to the extent that my predecessor plans was Reich Minister of Justice Dr. Schiffer, who, by the way, is a full Jew. He expressed the following thoughts about this problem at the time, and I quote:
"The wound should not be covered up and smeared over it, must be cut, pressed out, and scraped out. The reform in the Administration of Justice which we need is not an enlargement or a reconstruction, but a thorough reduction."
These plans which were discussed in Germany for fifty years, and the execution of which failed every time, I now made my own. As can be seen from the memorandum, I was confronted, above all, with the problem as to what means could be used at all to bring about this reduction in the number of judges without reducing the quality of jurisdiction. The means which I suggested were also very closely allied to those means which had been suggested for fifty years. These means were as follows: First the concept of the Justice of the Peace. I believe that I do not have to go into the details of this position because, first of all, I assume that the Tribunal is very familiar with this institution of a Justice of the Peace, and secondly, because I said something about it in the memorandum itself, and thirdly, because I discussed it in a lengthy article, which will be submitted.
The second method which I suggested, which I also discussed in a lengthy article which will be submitted as an exhibit, is the idea of the administrator of Justice, Rechtspfleger. This is an idea which conforms with the investigations which I made in England about the master, the registrar, and the clerk. The aim here is too clear, namely, that the judge should act during the trial exclusively as a judge and must be relieved of the burden of all technical preparations and of the tasks which are not truly the tasks of a judge.
The third method which I suggested was a change in the structure of the German courts as a whole. Details about this too are not only in my memorandum, but in articles which will be submitted in evidence here. My aims was to introduce, in the place of the superorganization of the German courts, a non-bureaucratic, simple and clear structure of organization of the courts. In this organization of the courts the idea was decisive for me that every judge in Germany have the same rank, but not as it had been up to now where the judge had to wait for and was dependent upon a promotion, so that his activity, even subconsciously, was guided by his aim of being promoted. I wanted to do away with all titles. In my opinion, every judge deserves only the title "Judge". I was of the opinion that through these changes, the inner independence of the judge would be strengthened. The decisive factor for this inner strengthening of the judge was my suggestion to take the judges out of the general group of civil servants.
In my memorandum I attempted to explain to Hitler the basic difference between a regular civil servant and a judge.
This, of course, would have meant that the judge, from the point of view of his income, his position, and especially his reputation, would occupy an overwhelming position in Germany. I expressed this as follows and underlined it. The position of the German judge must, ideally and materially, be organized in such a way that it will appeal to the best of the future lawyers. And with this course that the judge is a pure civil servant is connected another requirement which I stated, that only a person would be appointed judge who before that worked in another profession and had there gained experience, be it in economics, be it in another sector of the state, and above all, as a lawyer. I was of the opinion that only a person of advanced age and older than was usual in Germany -- I said that the minimum age should be 35 -should become a judge, because a man who is very young and who has not, outside of a quiet life as a civil servant, been forced to fight and been forced to gather experience, is not able to judge about the fate of people which is entrusted to him in the courtroom in a just and humane manner. And the last point of these suggestions for reform is the training of judges already at the university. I started with the assumption that the legal questions are very essential for the pronouncing of a sentence, but that the decisive question in every trial is the finding of the factual questions and the judgment of the person, be it the witnesses, the parties, or the defendants. The training that was given at the German universities was in former times exclusively concerned with legal problems. At the university the students listened as an audience to a professor who read out his lectures, and on legal theory that, to be sure, is necessary, but it had to be supplemented by a practical point of view.
This recognition I had gained experience from my activity for a long time as a tutor in Hamburg, and therefore my detailed suggestions which are mentioned in the memorandum which I later carried in Berlin. And Perhaps I may be permitted later to go into them in detail.
THE PRESIDENT: Dr. Rothenberger, I wonder if it wouldn't aid you in selecting from your material that which you wish to state under oath to the Court if I were to suggest to you that the very great proportion of all of the comments you have made this morning with reference to proposed efficiency reforms in the judicial system has not been criticized by the Prosecution at all, and I very gravely doubt if it ever will be. You are not being tried for every good deed which you ever did. I think if you would direct your attention to the matters which the Prosecution is likely to consider against you, you will aid us more. Reorganization and efficiency measures in the judicial system, I think, have not been criticized. If that was your policy it may very well be that it was an admirable one. Go ahead.
THE WITNESS: I beg your pardon, Your Honor. I have just concluded with these problems. I only went into them in detail because the Prosecution described these plans as Nazification and I therefore believed that I would have to defend myself against this charge briefly.
DR. WANDSCHNEIDER: After concluding the general statements may I go into the specific questions which I consider essential? May it please the Tribunal, in spite of that I am not of the opinion that this examination served no purpose, because an extensive personal impression of the -
THE PRESIDENT: Argue the case later.
BY DR. WANDSCHNEIDER:
Q: I now go into the individual cases. First I put the question to you on Page 6 of your transcript you said, usually the opinion is represented that an authoritarian state does not bear an independent judge. I repeat. Occasionally the opinion is expressed that an authoritarian state cannot bear a strong judiciary. Whom did you mean? Who represented that point of view occasionally?
A: That is very clear that the party and the SS represented that point of view.
Q: You meant thus your opponents in your daily life?
A: Yes.
Q: In your legal practice?
A: Yes, because I knew that these two organizations, the Party and the SS, in the course of the years exerted a very strong influence on Hitler. It was therefore decisive for me first to deal with the question as an immediate aim from the point of view to gain an influence on Hitler as a judge in order to exclude all influences on the party of the Party and the SS. And out of that knowledge I made the requirement that between Hitler and the German judiciary there should be no intermediary, that in other words nobody should be allowed to influence the judge, be it a political leader, be it Bormann, be it Himmler, or any other organizations who so far had exercised a strong influence on the judge. And the second concrete requirement which I made, and which is contained in my memorandum is that the entire administration of the criminal law, Strafrechtspflege, should not be split up but to its entire extent remain with the administration of justice. In connection with that are some formulations which I made in my memorandum which say the political leader and the official of the Gestapo cannot be a judge at the same time.
A corruption and hunger for power cannot be prevented in any better way than by a strong personality of a judge. And if I raised such requirements and then thought about how I could explain those thoughts to a man like Hitler, as I saw him at the time, how can I dare undertake such a step at all, the result of such an attempt was exclusively dependent upon the tactics or the methods which I employed. And therefore in formulating my memorandum, my ideas, I made certain concessions but I always added the aim itself immediately afterwards. I would like to cite two cases particularly which the indictment put into the record in that connection. First, the following sentence:
"All the fuss that is made about lack of justice, arbitrariness and insecurity of the law is today due to lack of insight in the political situation." And then I continue: "The only question is whether a strong judiciary is per se, that is permanently or only at this time, not compatible with the National Socialist State." And another sentence with which I am being charged is the following: "Political situations require expedient steps every day, and every stubborn opposition against these steps on principle or for fundamental considerations is pointless." And I continue: "But in the same way one had to be conscious everyday of the danger that the very comfortable pushing into the background of an orderly administration of the laws involves the tendency of a habit" -- and that last phrase is underlined -- "To prevent such a development, that is the task of a new German Administration of Justice."
Now for me the basic problem existed: how is it possible to make these ideas of a judiciary at all compatible with the idea of an authoritarian state, because the authoritarian state as such was a fact for me. I could not overthrow it, and to that extent of course there is a difference in regard to the position of the judge, which I aimed at in Germany, from tho position of a judge in England. For me it was a fact that Hitler was the man who in Germany combined all power in his own person, but in order to make the dangers inherent in this concentration of power clear to Hitler, to that purpose I emphasized two factors in particular in this memorandum.
First, for one, a historical element. By referring to the Roman Empire, to the British Empire and to other empires, I pointed out to him, on the basis of history, that, and I quote: