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.
Together with Rietsch, before the conference at Himmler's, I had had a lengthy conversation with Thierack. on the matter, because this problem again constituted a fundamental question of the Administration of Justice. Thierack did not give his approval, even when Himmler broached that question at the conference and asked Thierack to give his consent, Thierack remained firm. That is evident from item No. 7 of the document. As I heard later on, negotiations were held between the Referents, and the law never became a law in affect, at least not during my period of office, and I do not believe that it became effective afterwards. The further points which were discussed were the problem which, I think has been discussed in almost too much detail here, that of justice of the peace. It was astonishing and surprising to me that Himmler had any interest at all in that problem. He was fairly well informed about the historical foundations both abroad and in Germany, and it was equally surprising to me that he concurred in my opinion -- I talked about that subject, my opinion being that the office of the justice of the peace was not to lie in the hands of the party. That is evident from item No. 3 of the document.
Various other questions were discussed at length, questions which were largely of a technical nature, partly anyhow. I do not remember the order in which these questions came up for discussion. I am merely mentioning the question of ago in regard to responsibility before the law, (Strafmuendigkeit). I believe that Himmler mentioned a few cases where children of only 13 years of age had committed punishable acts and where he was of the opinion that one had to punish them, whereas under the previously existing legislation a child only becomes punishable at the age of 14.
Questions concerning the penal register were then discussed, concerning ordinances to be issued jointly by the Administration of Justice and the police. I do not remember for certain whether punishment by flogging was discussed in my presence. I think it is possible. I am certain that while I was there the question of the transfer of the prosecution was not touched upon at all. This document contains a reference under 13 where Thierack says "I flatly rejected Himmler's demand for the transfer of the prosecution to the police."
BY DR. WANDSCHNEIDER:
Q: Dr. Rothenberger, may I interrupt you before we continue? When you spoke about eh correction of sentences you said that the correction of sentences, according to Himmler's remarks was to be stopped. The document of 18 September 1942 itself shows that beyond that a number of details were laid down as to what procedure was to be adopted in correcting sentences, concerning the relation between Himmler and Thierack and with the corresponding participation of Bormann. Were such particulars discussed in your presence?
A: No. Himmler merely emphasized that a unilateral interference such as has occurred hitherto would no longer be permitted by him.
Q: Would you continue, please?
A: The last point which is contained in the document was also certainly not discussed at all. I am referring to the question of the transfer of the penal administration of justice concerning Jews, Poles, Gypsies, Russians, and Ukranians.
Q: Dr. Rothenberger, you know that transcript of 18 September, those minutes where it says that Himmler and Thierack led the discussion and that you were present.
How can you explain it that those points which, according to you, were not mentioned in your presence must have been kept secret from you or deliberately cannot have been discussed in your presence?
A: The file note which Thierack wrote personally I saw for the first time here. Today it is altogether clear to me how that file note came about. Attached to that file note in NG-059 is another note signed by Ficker, Reich Cabinet Counsellor.
That note confirms that following the conference which I attended, the Reich Minister of Justice and Reich Leader SS, I quote, "Had a conversation alone."
When I think it over as to why such a talk between the two alone took place, today I realize fully that Himmler and Thierack quite deliberately excluded me and misled me, in particular, concerning the most delicate points.
What were their motives, I naturally can't say but in accordance with all the previous and subsequent events, immediately after the conference, I am bound to assume that Himmler and Thierack did not exactly regard me as their ally in such plans, and that during the first conference which I attended, they quite deliberately created the impression that they were making certain concessions. As to whether they, themselves, were not certain of themselves, whether Hitler really had a certain amount of understanding for my plans, I cannot tell, of course; but as far as the early period is concerned, that is possible. And now Thierack, I do not know when, for it cannot be seen from the file note, which bears no date, summarized the results of both discussions; that is to say, the converence which I attended and the following conversation between Himmler and Thierack alone, in this file note, without differentiating between them. It seems that a part of this file note was added by him only at a later time. I gather so from the original document, according to which some of the document was added later on by a different typewriter. That part concerns the last item, Point 14, the question of the transfer of the Penal Administration of Justice over Jews and Poles.
Q. Dr. Rothenberger, may I put another question to you in this connection? If I understood you rightly, you wanted to tell us that Thierack and Himmler were uncertain towards you and did not quite know where they stood with you. To what do you attribute that feeling that they had, that they did not quite know where they stood with you?
A. Mainly I think that feeling was caused by my memorandum. I assumed that Himmler knew that memorandum and that Himmler was not certain whether Hitler was really supporting the ideas of that memorandum.
Q. Did the unusual way in which you came to Hitler play any part in that?
A. No doubt, for Himmler and Thierack both knew that I had been appointed by Hitler himself in an unusual manner.
THE PRESIDENT: You have covered that.
DR. WANDSCHNEIDER: Thank you May it please the Tribunal, may I continue with my examination?
THE PRESIDENT: Yes.
BY DR. WANDSCHEIDER:
Q. What was your first impression after the conference?
A. My first impression after the conference was favorable. Immediately after the conference, I told Reich Cabinet Councillor Ficker so. That too can be seen from NG-059. I believed that that favorable impression was due to the fact that in regard to the main problems of the Administration of Justice, Himmler had not prevailed with his view. He had not asked to have the prosecution transferred. Concerning the correction of sentences and that of the "Schwarze Korps", he had given assurances, in the problem of the asocial law, too, he had withdrawn his demand, and the question of the transfer of prisoners had at any rate remained open.
After the conference, the next morning in fact, I left by myself. Thierack remained behind -- I do not know for how long he stayed. I went to Hamburg via Berlin to join my family in Hamburg, and there, too, to a friend I talked in a very positive way about this very important meeting which had concerned the Administration of Justice. When I returned to Berlin, the great disappointment began. Already after a few days, there was, among the files which lay on my desk, a paper. That, too, was a file note by Thierack. It was a much briefer file note than the one here. As I remember it now, it concerned a conference with Goebbels. That file note indicated, in what form I do not remember now, that Goebbels had voiced Thierack the idea of the extermination through work. That file note was not addressed to me. It must have come into my possession by mistake.
When I read it, I could hardly comprehend that idea to start with. I could not comprehend what was meant by it. Feeling upset, I went upstairs to sea Thierack immediately and asked him what it was all about.
Thierack said to me with a certain amount of arrogance and condescension, "Do not get excited. It is correct that I talked to Himmler alone afterwards," --. That was the first time I heard of it,---"and in the course of that talk, this question, too, was discussed by Himmler and myself. But I rejected that demand on the part of Himmler with determination. I did that for humane reasons alone, and Himmler too understood that at the time everybody in Germany was needed."
During that talk, Thierack took a paper out of his desk, and on this paper -- which I did not read myself but I could see it-- Thierack wrote in the margin so that I could see it, in his green pencil, "Settled or Rejected." I believe it was settled, as I can see now. Evidently, he wanted to confirm to me that his assertion that this idea of extermination by work had been dropped, by writing down that remark.
I had only been in office for three weeks at that time, and I was still so innocent that I did not realize that those men might really carry out such idea, and that they were deluding me.
Q Dr. Rothenberger, in connection with this group of questions, a number of documents have been submitted about which you will have to give us your views. I now want to enumerate the various documents and to ask you to give us your views. To begin with, it is Exhibit 262, Document Book IV-A, page 37, that is an extract from statements by Goering of 14 December, 1942, about the employment of prisoners, in anti partisan commandos, etc; did you ever hear anything about that?
A I gave my views on that document yesterday, and I said that as far as I remember, I have never seen it, and that it does not bear my initials.
Q We are then going to deal with Exhibit 264, Document book IV-A, page 42, that is a letter from the Reich Ministry of Justice to the general prosecutors, dated 22 October 1942, it is signed by Krohne, and it was connected with the carrying out of the agreement of September 1942.
A I never saw the letter either, which was natural, because it was a problem which concerned penal law and the administration of penalties. Such matters were not submitted to me, on principle.
Q As Exhibit 268, the Prosecution submitted a Document which was signed by Dr. Eichler, and is dated 21 April 1943; it concerns the transfer of Jews, Poles, etc., into concentration camp; did you ever hear of such a letter.
A No; I never saw that letter either.
Q Finally, a gruesome letter from Thierack to. Bormann, dated 13 October, 1942, plays a part. That letter was read into the record; and, was not submitted as a separate document --if I remember correctly. The Court knows it, did you ever see this letter from Thierack of 13 October 1942.
A No, I do not knew that letter either.
Q Would you now tell us, please, whether in the subsequent period after after those occurrences you ever again attended any discussions on questions of administration of penalties.
AAs I said yesterday, I never had anything to do with Department 5 and 15, not even as Deputy for Thierack, no referent ever came to see me on any question connected with these departments, Only once--and that was very soon after those events, it must have been approximately at the end of September, Thierack asked me to go up to see him. I believe at that time he was still alone in his office; and told me that Department 15 was to be established. For he had admitted that to me, that he had declared himself prepared, towards Himmler, to hand over prisoners to Himmler's armament industries, and for that purpose he told me that he was not going to establish Department 15. The question arose for him whether the new chief of that Department, that is, the man of whom he was thinking as a chief, Herr Engert, who at that time was the Vice President of the People's Court, and whom, therefore, he knew well, could become a ministerial Director. In the ministry the chief of every department had the rank of a Ministerial Director, that is the highest grade below that of under-secretary Since a new department was about to be established, the budget did not provide for an appointment for him as ministerial Director. He wanted to be informed by me about that question -- in particular as to whether, he as the minister was entitled to give Herr Engert that official designation of Ministerial Director, in spite of that, I said no, he could not. All the same, later on, although he did not have the right, he did confer that official designation on Herr Engert. On that occasion, later a few more gentlemen joined us, Thierack also made a few general remarks about the fact that is was necessary to make prisoner's available for the armament industry; that he himself in his prisons did not have an adequate number of armament plants; therefore, he had consented to a transfer of prisoners to Himmler.
In the course of that discussion, the impression which I had had before was confirmed to me, namely that Thierack had consented to the transfer but for those purposes--as I know today, for which they were actually made available.
Q Dr. Rothenberger, in the account you gave us this morning, you spoke of considerable tension with Lammers, or, rather Thierack; and you also spoke of differences of opinion with Himmler which existed on account of your demands. Did that tension and these serious differences of opinion already have any kind of adverse affect on you already at that time.
A Yes, and in very concrete manner, in a way which during my whole period office in Berlin put me under a shadow followed me. Shortly after that conference with Himmler, a president of a district court of appeal, it was Dr. Draeger, from Koenigsberg called on me. He said to me do you know that Himmler has sent on inquiry about you, via the SD, to all branch offices in the Reich? He then showed me a SD inquiry, dated 9 October, 1942, that was shortly after those events had taken place. That inquiry was headed: Re: Views on the now leadership of the administration of Justice. Following a new kind remarks abut Thierack, which I do not remember verbatim, it then said about me, literally, I remember that exactly--"one is the opinion that Dr. Rothenberger will not hold out in his office for a long time. He does not possess the necessary qualities; he comes from a small district.
Q What steps did you take then?
A When I heard of that, I went to Thierack and asked him for his protection, since I was naturally of the opinion that It was the duty of a chief of a ministry to protect his under-secretary against such inquiries. The introductory sentence is particularly noteworthy:
"One is of the opinion"--Perhaps I may add a few explanatory words.
The purpose of such an inquiry is for the branch agencies of the SD all over the Reich to give their opinion; but, with Himmler it was customary, by the wording of his inquiry to precluded and suggest opinions.
THE PRESIDENT: We will recess for fifteen minutes.
(A recess was taken.)