Q Further more, in tho Gogler case, Exhibit 135, in Document Book III-B, page 1, the Prosecution has mentioned another case which was reported to you when you were deputizing for the minister. Please comment on that case?
A I no longer remember that case, but from the opinion, I can gather the necessary the necessary details. Not the entire opinion is available, but only part of it, that is, some of the reasons. All the same I believe that I am able to reconstruct tho case. It concerned a Polish workman who worked inside the Reich and who had given to a Polish flight lieutenant who had served in the RAF and who had become a prisoner of war several exact drawings of the prison camp where he was held for payment, so as to help him to escape. The opinion and the reasons for the sentence shows that the contents of the drawings which were found showed clearly that Gogler wanted to depict in his drawings the whole surroundings of the camp. Therefore, the court did not believe it when he said that he had only made the drawing to show the flight lieutenant where the camp of the civilian workers was located. Gogler's brother was acquitted in the same sentence. The opinion which gives the reasons for that acquittal is unfortunately not available. To me the opinion from every point of view, subjectively and objectively, was correct; personal reasons for clemency were not advanced; from the legal point of view treason and abetting the enemy had occurred, and for that the death sentence was mandatory. If the sentence is also based upon tho law concerning Poles, that was without any legal significance, because under Article 91-B of the German penal code, alone, the death sentence is mandatory for treason, connected with abetting the enemy. I ordered that sentence be executed.
Q In July, 1943, in another case you did not exercise your right for clemency. I am referring to the Kalecki case which was mentioned by the Prosecution in Exhibit 130, in Document Book III-A, page 84 in the English text. Please give us your views on that.
A In the Kalecki case the legal situation is exactly the same as in the Gogler case. Here, too, Poles were concerned who had committed treason in the Reich and had abetted the enemy. They had done so by several times leaving their place of work and trying to escape across the Swiss frontier to join the Polish Legion. I have no personal recollection of that decision either. The legal justification is the same as in the Gogler. In this case, too, it was a case of treason committed in our own country, and as no personal reasons were advanced, I decided in favor of the execution of the sentence.
Q The Prosecution further connected you with a document which has been submitted as Exhibit 255, in Document Book IV-A, page 6. The document is concerned with clemency granted to two party members who had committed a serious crime; they had murdered two clergymen; and they received clemency without having merited clemency. Did you play any part in that?
A This is an error on the part of the Prosecution. I had nothing to do with the deciding of the clemency plea on behalf of those two party members. I neither signed it nor did I see it for purposes of information; and furthermore, from the Prosecution's own document it is evident from Document Book IV, Supplement Volume III, No. 6-C; there it is evident that it was Thierack who decided the case.
THE PRESIDENT: May I have that reference again?
A Document Book IV, Supplement Volume III, No, 6-C.
Q Dr. Rothenberger, we will now go over to another subject. Now we are going to deal with the beginning of the war. I want to ask you about the Jewish problem which we have already discussed. In what way did the Jewish problem develop after the outbreak of the war, as far as your opinion goes.
A The outbreak of the war increased the difficulties of the Jewish problem in Germany considerably. The situation became considerably more acute, and in particular under the influence of propaganda. Under that influence, naturally difficult legal conflicts arose as far as the situation of a Jew in court proceedings was concerned.
Previously, as Dr. Schlegelberger emphasized, already there had existed separate welfare institutions for Aryans and non-aryans. There was the NSV for the Aryans, and there were separate welfare institutions for the non-aryans. For the jurisdiction, that resulted in a complete insecurity on the part of the judges as to the question whether a Jew can be allowed to conduct proceedings without paying costs. There were courts which granted that privilege; there were other courts that did not. I considered that a uniform jurisdiction on these matters was necessary. Naturally I was not uninfluenced by the situation then prevailing; and, therefore, I supported a proposal to the Reich Ministry of Justice that a uniform jurisdiction should be developed to the effect that such privileges were not to be granted to the Jews. The importance of those privileges concerning costs and non-payment of costs has been characterized by Dr. Schlegelberger who said that the state makes an advance which the person concerned has to pay back, that is to say he is not exempted from paying costs caused by court proceedings. The Prosecution in submitting evidence read out a sentence which is supposed to have originated with me. I only want to correct the matter to say that Exhibit 372, NG-589, shows that that sentence is not mine, but was phrased by the Gau Economic Advisor. The other exhibits which refer to that question are NG-392 -
Q Dr. Rothenberger, may I interrupt you for a moment so that we can quote the correct exhibit numbers to the Court? They are Exhibits 373, Document Book V-D, page 331 further Exhibit 462, in Document Book V Supplement, page 82; and Exhibit 372, Document Book V-D, page 264. Would you please continue.
A The only thing I can add is that it happened fairly frequently, and that appears altogether understandable that the Jews in order to avoid having their property confiscated upon their emigration, transferred their property to somebody else in a fake transaction. Thus, the whole problem became more complicated and more difficult for the courts.
Q In what way were you concerned with the curtailment of Jewish legal rights which emerged in the subsequent period?
A: I had to deal with that question once again, in the Spring of 1943. At the end of April Thierack one day asked me to go see him and told me that on the same day a discussion would take place, a so-called conference of under-secretaries. That conference was to be hold at the Reich Ministry of the Interior. I believe I had no knowledge of those developments until then.
Q: May I interrupt you, Dr. Rothenberger? At the moment we are concerned with Exhibit 204, which Dr. Rothenberge wants to discuss; it is contained in Volume III-H, Page 38. This Exhibit 204 is composed of a number of letters in which a craft on curtailment of legal means and legal recourse for Jeww is discussed and in which various ministeries give their views. Will you tell us, please, whether you had anything to do with that matter?
A: Until that conference I had nothing to do with the previous history. That is duo to the fact that the first draft originates from a time before I had assumed office. It is dated 3 August 1942 and it is signed by Dr. Freisler. The second draft is dated 13 August and that also was before I assumed office. As this was a matter concerning penal law I was not informed about the developments during the subsequent period. As I can see from the documents now, in September 1942 the so-called GBV, the plenipotentiary general for the Reich Administration -- that was the Reich Minister of the Interior -- was in charge of the drafting, and conference which I have mentioned took place at the Reich Ministry of the Interior.
Q: Would you tell us something about the course of the conference of April 1943?
A: Thierack, before I want to the conference, handed me a draft.
That was the draft by the GBV of the 25 September 1942. That was already six months old by that time because the conference took place in April 1945. I was annoyed anyhow that I was now to deal with a matter the previous history of which I did not know. I had a look at the draft in Thierack's office and when I had read it I said to him that I was against such far-reaching restrictions.
What seemed embarrassing to me, in particular, was the provision that if the Jew was not to swear an oath, he was yet to be punished for purgery. Thierack said to me that doesn't matter. In his somewhat brusque and curt manner he said, "You will have to go there, for I am the Minister and I cannot attend a conference of undersecretaries." That, as a matter of fact, wax not the custom. I went to the Reich Ministry of Interior. To begin with, I maintained reserve, because I had not dealt with, the matter beforehand. Then I heard from the others who were present there that they too were against such' an ordinance. Thereupon, I said that that was my personal opinion too. Of course, I could not say as to the Minister's decision. He was in favor of it, as he has told me beforehand.
Then the provisions of that draft were dropped. Only one person objected. That was Kaltenbrunner who was present. Kaltenbrunner said he had to attack a decisive importance to at least two provisions becoming law. He was referring to two provisions which, in effect for some time, had already been applied, which however, required subsequent legalization. One provision was that the property of a Jew she dies goes over to the Reich. He said, as is evident in detail from the Exhibit, that until now Jewish property in the case of death had been regarded as socalled property of an enemy of the state and had, therefore, been confiscated all along.
But he would like have a legal provision, because that would constitute a technical administrative simplification.
That provision, as I see from the file, had not been incorporated into the draft before by the Reich Ministry of Justice, but by the Reich Ministry of Interior. It appears for the first time in the draft of 25 September 1942. The Ministry of Justice, thus, did not deal with it. The second provision -
THE PRESIDENT: Would you mind telling us what happened to that provision?
THE WITNESS: Yes. That provision did become law afterwards. Yes, I meant to say that.
A: (Continuing) The second provision which Kaltenbrunner wanted to become law and considered necessary was a provision, which has already been discussed here, and it concerned handing over the penal jurisdiction over Jews from the administration of Justice to the Police. As far as I was concerned that resulted in an entirely new situation, for that provision was not contained in previous draft. I felt I could not assume any responsibility for such a provision, all the more so as I had no formal competence for penal matters. I would have to report to the Minister as I had been requested by him to do.
Q: Did you make a report to Dr. Thierack?
A: I went to see Thierack on the same day, and I told him that he had now for the second time confronted me with a very embarrassing situation, by by-passing me in a fundamental question of the Administration of Justice which did not concern me formally, but which concerned me as a jurist and as a human being. I could not assume the responsibility and I offered him my resignation.
Thierack was very angry and said, "I shall decide the day when you will leave the office. In saying that he referred to the compulsion to which all of us were subject in time of war, that is to say, the compulsion of not being able to leave our service voluntarily, He then added ironically, "for the rest -- in the future you will have nothing to do with penal matters even when I am away for I have already asked Lammers to appoint a second under-secretory, and I shall got some help that way."
I mentioned these facts briefly in another connection this morning.
Subsequently I had nothing to do with the ordinance. I merely read that later, on the first of July 1943 with both provisions it took effect. I felt unfree, and from that time on I stuck all the more to the one task, which still remained to me, that is, the task of the administration of justice proper; the strengthening of the judiciary.
Q. We are now coming to a new point. Would you please tell us something about your relationship with the Party, in particular with the head of the Party Chancellery, Martin Bormann?
A. I had very little to do with Martin Bormann. I only met him once; that was when I went to see Hitler at the Fuehrer's headquarters. His attitude toward me was expressed only in a few matters concerning personnel problems, for his chief interest, naturally, was devoted to penal law in the Administration of Justice and I had no contacts with him there.
I have to assume for certain that ho knew about my memorandum to Hitler, because he was in Hitler's permanent entourage. Therefore, for he certainly was not stupid, he must have gathered from that memorandum, if those plans were to become a reality, what dangers they would have meant for his position. To restate that here briefly, I had asked that no intermediary authority should exist between Hitler and the Administration of Justice. Therefore, his position in particular would have been jeopardized seriously by that. He knew from my suggestion that I wanted the judge to have authority which would enable him to exercise criticism on the Party. Furthermore-- and this was an absolute exception for Bormann---there was the manner in which my appointment was made. I have described here the way in which I was appointed, via Bormann's brother and Albrecht. Martin Bormann was bound to consider that way of making an appointment as a violation of the circle which Martin Bormann had placed around Hitler, for it had not occurred for years that anybody had access to Hitler without Martin Bormann being present.
Consequently, in the course of years, his position of power became stronger every year.
Due to that general attitude he was interested in removing me and my assistants at the earliest possible moment. That was expressed openly only in some cases, cases that concerned personnel matters. I happen to remember two such cases, and I remember them because he wrote to me, and Thierack there upon forbade me to sign any letters to the head of the Party Chancellery.
There was one case which has been mentioned here by the witness Miethsam. That was the case where a judge had made a Jew swear an oath and had therefore been excluded from the Party by the Gau Court. I had lodged a complaint with Bormann and the Gau Court that a judge had been attacked by the Party for an action taken as a judge.
Q. May I interrupt you. Dr. Rothenberger?
DR. WANDENSCHNEIDER: For the information of the Court, this is the testimony by Miethsam, and it is in the transcript at page 4885 in the English text.
Q. (Continuing) Would you continue please, Dr. Rothenberger?
A. The second case which I happen to remember is this: Bormann had the Ministry of Justice -- and the case came into my hands -- that a judge, who had taken part in a Roman Catholic procession, should be punished, or pensioned - I cannot remember which. In a letter to Bormann I energetically opposed this action. He thereupon asked Thierack that in the future I was not to deal with letters to him, and I no longer did so. I never had any other points of contact with Bormann.
Q. May I interrupt you, Dr. Rothenberger? With reference to foreign property, I would like to ask you to tell us whether you had contact with Bormann in that respect.
A. I believe I mentioned that yesterday, or this morning, and I said that Bormann had asked that foreign property should be liquidated, whereupon I called a conference of Undersecretaries and frustrated Bormann's intentions.
Q. How was it in regard to Bormann's assistants? When Bormann or his assistants came to the Ministry, did they ever meet with you or did they go to see Thierack?
A. No, they only went to see Thierack. I mentioned that before.
DR. WANDSCHNEIDER: Thank you.
I have no further questions on this subject. I would now like to deal with a new, independent point, and I request the Tribunal to rule whether I am to start with that today. Two large groups of questions are concerned, and I would like to deal with them together, if the Tribunal agrees.
THE PRESIDENT: The Tribunal agrees.
DR. WANDENSCHNEIDER: Thank you very much.
THE PRESIDENT: We will recess until tomorrow morning at 9:30.
(A recess was taken at 1625 hours, 17 July 1947, until 0930 hours, 18 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 Nurnberg, Germany, on 18 July 1947, 0930-1630) Justice Brand presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 3. Military Tribunal 3 in now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.
THE PRESIDENT: Mr. Marshall, will you ascertain if the defendants are all present.
THE MARSHAL: May it please your honor, all of the defendants are present in the courtroom with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: Defendant Engert has been excused. Let the notation be made. You may proceed.
KURT ROTHENBERGER - Resumed CROSS EXAMINATION (Cont'd).
DR. WANDSCHNEIDER: I ask you to permit me to continue with my examination of Dr. Rothenberger.
BY DR. WANDSCHNEIDER:
Q: We are now coming to a group of problems which were set down in Exhibits 38 and 39. The Exhibits are concerned with a discussion between Himmler and Thierack, in the presence of Dr. Rothenberger, as is said at the beginning of the transcript of 18 September. Exhibit 39 has been submitted by the Prosecution in Volume 1-B, page 75. Dr. Rothenberger, would you tell us, please, who was your main opponent outside the administration of Justice?
A: Himmler as the Reichsfuehrer SS. That he was my opponent I had known for many years. I gathered that on the one hand from the fact that at public demonstrations I had repeatedly in view against all measures which had been taken against the Administration of Justice at the instigation of Himmler.
In particular, I remind you of the measures described in the "Schwarze Korps" against the German judges. I remind you of his measures which amounted to a correction of sentences. It was natural that the view which I had expressed in public as to what those measures would lead to, that Himmler, through the SD service would have been informed of that. For me it was a matter of course, that Himmler would have been informed of the contents of my memorandum to Hitler, and that was proved right during the discussion later on. About that discussion Himmler know that I had warned Hitler of the development of the Administration of Justice and of the development of the Reich as a whole, a development towards becoming a pure power states.
In particular Himmler knew from the memorandum that I had requested that the entire administration of penal justice was to lie exclusively in the hands of the judiciary. That that constituted a comouflaged attack on the administration of Justice by the Gestapo was naturally obvious to Himmler. That view of mine, namely, that Himmler for that reason harbored great distrust towards me, was confirmed to me, not in the course of the discussion, but it was confirmed to me by the results of that discussion; and it was confirmed without any doubt. I saw Himmler once in my life and for the following reason:
He had sent out an invitation. Thierack said to me that I was to go along with him because it was a first official visit. We had only just assumed office and this was supposed to be my first official call on Himmler. We had not heard before what points were to be discussed there.
One could only rely on suppositions. My supposition was that the problems which for years had been an object of dispute between the Administration of Justice and the police, would probably be mentioned in the course of this discussion. Among those problems there were, in particular, the following questions:
On the one hand, the question of the transfer of the prosecution to the police, which has been mentioned here a few times, but the significance of which, I believe requires some explanation. I mean, it is significant for the entire set of proceedings and trials in Germany. The German prosecution at this trial here has repeatedly been described as the most objective authority in the world. Naturally, that was an exaggerated expression. But contrary to the Anglo-American procedure, what is correct about that statement is that the public prosecutor, because he has to deal with all elements that speak in favor of the defendant as well, constitutes a very farreaching protective element for the defendant as well.
This is therefore for the entire method of proceedings, the position of the judge and in particular also the position of the defense counsel -- which for that reason, too, is an entirely different position than it is under Anglo-American procedure -- of essential importance.
If Himmler would have get the prosecution into his hands, which has had wanted to do for years, that authority the prosecution, which hitherto had been objective, would have got into Himmler's hands. Himmler's struggle against the administration of Justice would have been carried into the courtroom. That explains my great misgivings against that demand of Himmler's, because I knew that that problem would become acute, I considered it my duty, although formally it did not concern me, but because it was a basic question for the reputation of the judiciary as such, before the discussion I tried with all means at my disposal to persuade Thierack that on no account was he to give way on that point.
I had all the more cause to do so because I had the feeling that Thierack wavered on that point. I did not know, I only heard that here, that actually on the occasion of the Elias case, which has been mentioned here, in Czechoslovakia, he in a certain way had already committed himself.
I made particular use of this factor with Thierack: I told him that if the prosecution would no longer be under the Administration of Justice, you yourself, who direct the penal administration of justice, will lose the ground under your feet. What I said was, "you yourself will saw off the branch on which you are sitting." That factor evidently did have some effect upon him; it evidently succeeded.
The second problem which would probably be broached by Himmler was the question of the community law concerning asocials, which has already been mentioned. I shall refer to that briefly later, because that problem was discussed during the conference.
There were two further points which I thought would be broached they were old hobby horses of my own. I am referring to the question of the Schwarze Korps" and that of the correction of sentences. Thierack himself said to me, before the conference, on the way there-we went there together--"Will you keep in the background at the conference, please, because, on the one hand, the problems will probably concern matters which do not affect you, that is to say, matters of the administration of penal justice; and furthermore, I do not want an argument to arise, between us again which is quite apparent to outsiders, such as occurred during our visit to Lammers a month ago."
Q What happened at the conference itself?
A It is nearly five years ago now since that conference took place, but as it was very impressive I believe I can remember it fairly well. It was not a formal meeting, since only a very small circle of people attended. It was, in fact, an informal conversation, interrupted by a supper. Himmler was the main speaker. I noticed that this manner of speaking was very much like that of Hitler's
THE PRESIDENT: Wouldn't you it be possible for you to concentrate a little more on the actual material features of the conversation?
THE WITNESS: Yes.
THE PRESIDENT: We don't care how he spoke, or about his manner.
THE WITNESS: Yes, Your Honor.
A (Continuing) To begin with, he made general remarks about the war situation, of which he took a favorable view. I do not remember now the sequence of the individual points which are mentioned in the minutes, but I do believe that he then immediately went over to the subject of the transfer of prisoners, that is to say, the transfer from the Administration of Justice to the Police. That was a problem which was entirely new to me. He said that through his organizations he had had the facts established that the prisoners under the administration of Justice, on the one hand, were badly overcrowded, and furthermore that in some cases, at those prisons, work was still being performed which was not essential to the war effort. He mentioned handicraft and pasting together of paper bags. He himself, on the other hand, had constructed large armament works. He was of the opinion that at a time when every German, be it the soldier at the front or the man or woman in the homeland, was working for the war efforts, the prisoners too, in one form or another, should make their contribution towards the war effort.
When he had explained that to us in great detail, it seemed to me that Thierack's attitude on that point was not altogether clear. On the contrary, I had the impression that Thierack had understanding for that request which Himmler had put forward.
No details were discussed as to what type of prisoner Himmler wanted transferred, but it was said in a general way that only prisoners with long terms would be considered for such transfer, since prisoners with short terms would have to be discharged again at an early date.
I myself kept silent on that point to begin with, because for one thing I did not feel certain on that question, and, and secondly because Theirack had a specially asked me to held back. However, in the course of our talk--I do not remember whether it was immediately or whether it was later on--the conversation turned to the subject of the general relations between the Administration of Justice and the Police.
That conversation dealt many with the old arguments concerning the "Schwarze Korps" and Himmler's correction of sentences. Himmler was of the opinion that the Administration of Justice had failed in various instances and for that reason he had been compelled to intervene. Since Thierack, on that point too, did not take up a clear attitude in favor of the Administration of Justice, I considered it my duty to interfere. Naturally, I was cautious in my manner, but I was clear as far as the matter itself concerned. I had just been appointed by Hitler, and had the belief that Hitler was backing up my plans. I said that the problem of the Police and the Administration of Justice could not be considered just from the point of view of one single sentence which might have been correct or incorrect, but that one must regard that problem from the general point of view of the reputation of the judiciary. I said that the reputation of the State as such was dependent upon the reputation of the judiciary.
In speaking of these things I referred to my memorandum and my opinion that Hitler had approved my memorandum on these prints too. I said that from that point of view, too, I considered it incorrect for the Administration of Justice to transfer prisoners to the Police. If the prisoners were not being put to sufficient use for the war effort, the Administration of Justice itself would have to see to it that sufficient use would be made of such prisoners.
Himmler listened to my remarks with comparative calm. It seemed to me that he had understanding for what I was saying.
He said that he had never heard of these problems from that angle, and he said that in future he would instruct the "Schwarze Korps" to refrain from attacking the Administration of Justice; he would also stop the police from intervening in the case of individual sentences.
Those two subjects had thus been concluded. The question of the transfer of prisoners seemed to me to remain undecided.
Besides that point a few other problems were discussed, for example, the question of the asocial law.
THE PRESIDENT: I wonder, would you for my convenience tell me the technical name of the asocial law, either by date or in any other way? What law are you referring to as the asocial law?
THE WITNESS: May it please the Court, that is not a law in the sense of ever having become a law. It is merely a draft which dealt with the question as to whether the police was to be allowed to arrest asocial elements. Have I made myself clear, Your Honor?
THE PRESIDENT: In saying "the asocial law" you didn't mean that there was any law at all?
THE WITNESS: No, no, I did not. No, it never became law. I will explain that in a moment. I was familiar with that problem from my time in Hamburg. Yesterday I explained, as is evident from NG 387, that I had put forward the proposal that if such a law were to be issued at all, a judicial authority would have to be set up in order to decide as to who, in fact, was an asocial element. That same question was brought to my attention immediately when I assumed office in Berlin. I believe it was in my first or second week there when a Ministerial Dirigent Rietsch came to see me. He said to me, Mr. Undersecretary, you must help us. Minister Thierack is prepared to agree to that law, and that would be impossible, because that law would give to the police alone the right to determine who is an asocial element. Since a large number of the criminal elements are also asocial elements, such a regulation, that is to say if the police were to have the right to determine who was asocial, that would mean that the penal courts would be completely eliminated.