For the defendant Nebelung, Dr. Rothenberger, I should like to put a few questions to you too. Did you know the defendant Nebelung at the time when he was President of the District Court of Appeals in Braunschweig?
A: Yes.
Q: Could you tell us something as to how Nebelung behaved as President of the District Court of Appeals concerning interventions on the part of offices outside of the Administration of Justice? Do you happen to know what his reputation was as the President of the District Court of Appeals? As I put that question to you, if I remember correctly I think of the distinction which you made between Presidents of District Courts of Appeals who were dependent on the Party and others who as firm characters stood up uncompromisingly for the interests of the constitutional state.
A: I met Nebelung as a colleague on conferences of Presidents of District Courts of Appeals which took place in Berlin regularly. During these sessions, he was very quiet, calm and collective. As for his district, Braunschweig, I cannot state any judgment of opinion.
Q: Thank you.
THE PRESIDENT: Is there any other direct examination? (No replies) The prosecution may cross examine.
MR. LA FOLLETTE: Before beginning, Your Honor, I would like the record to show that the prosecution now physically delivers Exhibit 531, which is NG--1918, to the Secretary-General, and presents German and English copies for distribution. May the record also show that the prosecution now physically delivers to the SecretaryGeneral, Exhibit 532, Document NG-1917, and also presents the requisite number of German and English copies for distribution.
THE PRESIDENT: They have both been received, your Honor. If your Honor please, the prosecution respectfully requests that it may be permitted to prepare its cross examination of Dr. Rothenberger and that it may begin its cross examination at nine-thirty on Monday morning. I would like to say in further explanation that very shortly after this case started, Mr. King and Mr. Wooleyhan and myself attempted to make a division of the work as to certain defendants. Mr. King specialized on the testimony with reference to the defendant Rothenberger. At about the time the defense of this case began, he was transferred, but with the understanding that he would continue to handle the case of this defendant and one or two others.
Last week, at the last of the week, he advised me that he might have to go to Duesseldorf. At that time the defendant Klemm had not been cross examined, and I did net know that his document books would not be ready. I therefore thought it would be a safe time for him to leave. Whether he returns in time I cannot say, but in any event his absence made it necessary for me to attempt to learn about the facts of this case against this defendant, which I had not anticipated I would have to do prior to the date this defendant took the stand. For that reason I ask the Court to permit the cross examination to begin on Monday.
THE PRESIDENT: Has either Dr. Schilf or Dr. Wandschneider any documents which could be put in this afternoon? We understood they were to be ready.
DR. WANDSCHNEIDER: May it please the Tribunal, I have not received, my document books, although I put them in at the right time. Therefore unfortunately my presentation of evidence is quite broken up because I had an interest, of course, to support the individual statements of the defendant by documents.
Therefore I would be very happy if at least that part of the evidence which is presented now should be presented all at one time and that therefore the cross examination should take place immediately after.
DR. SCHILF: Mr. President, I have neither received the document books.
THE PRESIDENT: Mr. Lafollette, I will consult with my associates as to whether this extension of time should be granted, but this Tribunal must not again be delayed and embarrassed by any kind of a transfer of anykind of a lawyer on either side of the case. I am not attempting to place any responsibility, but if a lawyer is going to cross examine a witness, a lawyer must be here when the witness is examined, so he will not have to wait for the transcript of testimony to find out what happened in court. That is completely beyond the pale.
MR. LaFOLLETTE: If your Honor please, I would like to be permitted to say one thing -- that even if I have to cross examine, I ask the Court to consider the fact that I have paid particular he went on the stand.
THE PRESIDENT: No expect counsel to be prepared to cross examine without such long delays as is now suggested, and, in the future that must be done.
The Tribunal rules -- and some of us with considerable reluctance -- that we will recess at this time until 9:30 Monday morning.
(The Tribunal adjourned until 21 July, 1947, at 0930 hours.)
Official Transcript of tho American Military Tribunal in the matter of the United States of America, against Josef Alstoetter, et al., defendants, sitting at Nuernberg, Germany, on 21 July 1947, The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, tho 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: Marshal, will you ascertain if the Defendants are all present?
THE 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.
THE PRESIDENT: The defendant Engert has been excused; let the proper notation be made.
DR. GRUBE: (Counsel for the defendant Lautz): May it please the Tribunal, I ask to be permitted to put the following request to the Tribunal.
The examination of the defendant Lautz, following the examination of Rothenberger, begins a new chapter because prosecutors and judges will be examined from that time on. To a large extent, the defense of prosecutors and judges is based on legal arguments, on interpretation of legal regulations which, so far, have not been submitted as documents by the prosecution. Therefore, within the scope of the entire defense, I have collected the regulations without which a defense of prosecutors and judges is not possible. I have compiled those regulations in special document books; I submitted those document books for translation more than three weeks ago, but until this day they have not been received. Tho matter would not be so bad if tho expert we wanted to call, Professor Dr. Niethammer, as expected, would have arrived today. Dr. Niethammer was supposed to testify as an expert about a typical German criminal trial and all the legal problems which arise concerning the prosecutor and the judge.
We were informed yesterday that although a vehicle was sent to Stuttgart by Captain Rice for Professor Niethammer, he cannot come now because of his activity as a university professor at Tuebingen, where he will be kept busy until the end of the semester, which will be in about two weeks.
The defense counsel for the group of prosecutors and judges are therefore faced with this problem: Without being at all in a position to explain all this to the Tribunal by means of an expert opinion or by documents, they are forced to deal with questions which cannot be elucidated without submission of legal regulations or expert opinion. Therefore, I ask the Tribunal to permit me to begin the examination of the defendant Lautz nor sooner than in about eight days, and that for the following reason. If Niethammer does not come, I have to change my interrogatory altogether, because I had prepared my questions expecting that the legal problems would be elucidated by my documents and by Professor Niethammer.
DR. KOESSL (Counsel for the defendant Rothaug): May it please the Tribunal, I ask that the motion put by Dr. Grube he approved. We are faced with a similar problem in the case of the judges under indictment. I wish to add to it, however, that a large number of files of court records have to be studied, and it must be proved that in each individual case the German law of procedure was taken into consideration.
Furthermore, we have had groat difficulties with the witnesses, and great difficulties in trying to bring before this Court the original records of the courts in question.
Furthermore, when individual cases are discussed, one has to refer to a great extent, to the substantial law and the law of procedure, and a discussion of this very difficult matter is quite impossible without having the document books. Therefore, if we were to discuss this matter without having the document books before us, a considerably longer period would be required for the translation, and it is to be doubted altogether whether these very difficult laws could be at all translated by the interpreters ex improvise.
I also ask, therefore, in conformance with the situation which also existed at the tire the documents of the prosecution were submitted, that a recess be decided upon, in order to afford us an opportunity to have our documents prepared so that we may have the necessary documentary evidence at hand.
DR. TIPP (Counsel for the defendant Barnickel): May it please the Tribunal, may I add the following to the statements made by my two colleagues?
The focal point of the presentation of evidence before military courts, as you gentlemen and we know, is the presentation of documents. Proofs based. on documentary evidence arc so much better than proofs based on documentary evidence are so much better than proofs brought about by the hearing of the defendant himself or by the hearing of witnesses. If the defense -- as has occurred up to now -- should be compelled to carry out the examination of the defendant without support of the appropriate documents, texts of laws or affidavits, then, for one, the examination of the defendant would have to be expanded and extended much more than if individual points could be supported by documents.
Furthermore, the submission of evidence loses a great deal. If everything that a defendant has to say can be submitted at the same time and put forth in the right light, then one can say that the defendant had a full opportunity and was permitted to defend himself, as it were, in accordance with the rules of procedure.
I should like to add something else. The defendants here -or at least some of them -- are in the dock because, allegedly, in the proceedings where they were judges or prosecutors, they did not afford the defendant all opportunities for his defense. Up to now we have had the impression--and the defendants have also had that impression--that we are before an absolutely objective court which affords them every opportunity for their defense.
If it has now come to the point where the defendants, at this moment, are not in a position to submit their documents, then it is not really the fault of the defendants or the defense, and certainly not the fault of the Tribunal. There are technical difficulties in the translation department which we, who are here in this court room, cannot remove. However, I do not believe that it would be in conformity with the rules of your law if these technical difficulties should go to the disadvantage of the defendants, who are certainly not at fault.
Another technical point. It is of little advantage to the Tribunal if we are given an opportunity to submit our documents later, after we have concluded our individual cases. We have seen an example of that in the Doctors' trial where, in some cases, we were forced to submit documents at the end, and not together with the rest of the presentation of our evidence.
The tribunal was not very much impressed with that method of submission of evidence, and neither were the defendants; and the prosecution also had difficulty with that manner of submission of evidence.
You gentlemen, as well as the prosecution, can only get the correct impression of the presentation of evidence if it is well-rounded and presented at one time.
For those reasons, I wish to agree with the statements made by my colleagues.
MR. LAFOLLETTE: May Your Honors please, may I assume that your Honors want to consult with each other that the Court, for the time being, wishes to consider these matters before passing; and would the Tribunal permit me to present now the petitions for citation which have been prepared in the matter of Dr. Marx? Or does the Tribunal wish to make any statement upon the pleas which have preceded me? I shall, of course, abide by the Tribunal's wish.
21-M-JP-1-5-Daniels (Int. Uiberall)
THE PRESIDENT: We would welcome the views of the prosecution as to the matter which has just been presented. The Tribunal will withhold its decision until it has had opportunity to consult with each other, and perhaps to ascertain what the situation is in the translation department. However, we would be glad to hear your views.
MR. LAFOLLETTE: If your Honors please, I will begin by saying that Mr. King is here and will conduct the cross-examination of Dr. Rothenberger. However, on behalf of Mr. King, now, as we did in the case of the defendant Klemm, we are forced to ask that we may reserve the right of further cross-examination after the Rothenberger documents have been presented. That is particularly true in this case, because a reading of the transcript or a review of the evidence reveals that the defendant Rothenberger, more often even than the defendant Klemm, referred to documents which he would present as substantiating his oral statements.
I bring that up first to reserve it, and secondly, to point out that, as far as it is possible, documentary evidence should be introduced at the time a defendant takes the stand or preceding his taking the stand. It does make for a more orderly presentation.
With reference to the matter which the counsel for the defendants who are judges and prosecutors have referred to, the Prosecution has prepared a brief on that matter on the law which we think is prevailing. If we are correct, much of the anticipated technical defects of compliance with German law would, at most, in our opinion, as our view of the law is concerned, would amount to the reception of evidence in mitigation and not a matter of plain defense. We had anticipated presenting that issue to the Tribunal when the evidence was presented by adding on objection to the relevancy or its materiality. This would not be a casual objection but a substantive objection. Perhaps if we could evolve some method by which that issue could be presented to the Tribunal before the evidence contained in those document books is presented, then much of this anticipated problem might be eliminated.
If the ruling is against us, of course, then we are confronted with this problem about which Dr. Grube and his associates have spoken. I don't know enough about the condition in the translation department, but it would certainly be beneficial to the Tribunal and the Prosecution if in some way we can get some document books into this Tribunal as quickly as possible. I don't know what else we can do. That is all the Prosecution can say at this time.
THE PRESIDENT: We observe that by coincidence or otherwise counsel for the defendants Schlegelberger and Klemm appear not to be here this morning. Those documents, as we have been informally advised, were to be ready.
MR. LA FOLLETTE: The Schlegelberger documents have gone in, Your Honor.
THE PRESIDENT: All of them?
MR. LA FOLLETTE: As far as I know, all of Dr. Kubuschok's documents Oh, yes, I beg your pardon. There was a book of supplemental documents that he wanted to submit. I had forgotten. I beg your pardon, Your Honor
THE PRESIDENT: I think the Tribunal would not be in a position to pass upon the petitions made this morning until we ascertain in some authoritative manner whether we cannot occupy ourselves with the documents in the immediate future relative to the defendants Schlegelberger and Klemm.
Only then would such an emergency as has been suggested become of any importance.
MR. LA FOLLETTE: Yes, Your Honor.
THE PRESIDENT: And we must be advised about that matter. You may present your other matter at this time.
MR. LA FOLLETTE: Thank you, Your Honor. If Your Honors please, at this time I send to the Secretary General the original signed affidavit in English and German of a petition for an order directing Hans Marx and Mrs. Karin Huppertz and each of them to appear and show cause why they should not be prosecuted for contempt of this Tribunal. I send the originals to the Secretary General because I want them filed. There will be copies for the Tribunal. I also send a pleading entitled "Supplemental and Amended Petition" for an order directing Dr. Hans Marx to appear and show cause why he should not be punished for contempt of this Tribunal to the Secretary General, the original in English and German.
I say in passing that subsequent to the presentation of the original affidavit as a result of the presentation of which this Tribunal on the 17th of July directed the Prosecution to prepare a petition, the Prosecution by reason of an affidavit of Dr. Peter Stern ascertained that Dr. Marx ha.d again approached Dr. Stern and had again, in our opinion, made representations as to the position of the Court which are not factually correct. For that reason it was necessary to file a supplemental and amended petition. Upon both of those petitions the Prosecution has presented one order for citation to be submitted to the Court for its consideration and approval.
At this time I new offer to be distributed the English and the German of the original petition. Please, one each to the judges of English and German first. The English and German are separate. One English and German to the interpreters and the court reporters.
THE PRESIDENT: Have you prepared a formal order?
MR. LA FOLLETTE: Yes, Your Honor, I will distribute that in a minute. Now please will you deliver the balance temporarily to the Secretary General. There is a copy in English and German there far Dr. Marx and to be delivered by the Marshal, to be served by the Marshal on Dr. Marx and Mrs. Huppertz. Also an extra copy for the Marshal's Office. There should be three copies there in English and German I believe.
Only two in English and three in German? That's all right. The Germans will be served on them. Now, if Your Honor please, I have distributed to the Bench three copies in English and German of the supplemental petition and also delivered to the Secretary General three copies in English and German for the Marshal, for the Marshal's files and to be served. I now send to the bench and distribute three copies of the order in English and German, one to the Secretary General for his files, three to the Marshal, and I shall distribute to the English and German reporters the others. The order, if Your Honors please, contains a blank date for the Court to fix as the time of hearing.
THE PRESIDENT: The petition, the supplemental petition, and the affidavits in support and the form of order submitted will receive the consideration of the Tribunal.
MR. LA FOLLETTE: May I just say this, that after the Tribunal has given the matter its consideration, if the Tribunal should feel that it is proper to issue an order, then I would like to present to the Tribunal a list of witnesses whom the Prosecution would like to have called.
Kurt ROTHENBERGER - Resumed CROSS-EXAMINATION BY MR. KING:Q.- Dr, Rothenberger, first several general questions.
I wonder if you would tell me again when you joined the Party?
A.- I have already explained that I joined the Party on the first of May, 1933, and that afterwards, -- I believe it was in 1936 or 1937 -the date of my entry was dated back to the first of December, 1931, and my membership number was reduced.
Q.- Do you recall approximately what your number was as of the date of your actual joining, that is in 1937?
A.- I do not remember that number exactly, but I think it was about 1,300,000.
Q.- And your new number was approximately 850,000; is that right?
A.- Yes.
Q.- Now, Dr. Rothenberger, when you joined the Party had you ever read the text by Hitler known as "My Battle" or "Mein Kamof"?
A.- Yes, during the years 1932-1933 I read the book "Mein Kamof."
Q: Having read the book "Mein Kampf," you were undoubtedly also familiar with the Party platform as it was constructed in the early 20's?
A: I also knew the Party program at that time, yes.
Q: Now, Dr. Rothenberger, as a judge in Hamburg, you did, did you not, file periodical reports on your activities and on the activities of others with the SD?
A: I have already explained that the SD leader, after the previous SD leaders had been removed by the Reichsstatthalter, was to see me once on the basis of a directive by the Reich Ministry of Justice. We had to maintain contact with the SD, and I have tried -- and that successfully -to nominate individuals to give the SD names of men who in the interest of the Administration of Justice reported to the SD. That was also done.
Q: So the answer to the question is "Yes". At the same time you urged your friends, and were successful, were you not, in having them join both the S A and the SD? You actively campaigned for that, did you not?
A: No. In the first place, I did not recruit any friends for that. There were judges in Hamburg of whom I knew that they were working and would be working exclusively in the interests of justice. I gave the names of those judges to the SD leader as assistants, so that the situation that had hitherto existed in Hamburg -- that the SD would submit reports against the Administration of justice -- should no longer occur.
Q: I don't believe the document has been submitted in evidence, but you are undoubtedly familiar with a piece of literature known as "Sixteen Months in Berlin," of which you are the author. Is that familiar to you?
A: A publication? No.
Q: No, it's not a publication. It's a document which you prepared at one time -- prepared after you returned from Berlin and before the capitulation. Are you familiar with that?
A: After I left the Ministry, in the year 1944, for my own use -- privately -- I made certain notations concerning my experiences in Berlin.
Q: Since your memory fails somewhat on this point, may I show you a photostat copy of the original to see if you recollect more clearly.
(Photostat is offered the witness).
A: Yes. Of course, I can't go through that in detail.
Q: No, I will do that, Dr. Rothenberger. I want to read you a portion of that document which you will find toward the end, under the division Roman Numeral four.
A: Roman four or Arabic four?
Q: Roman four.
A: Yes.
Q: I just want to test your memory on one paragraph, Dr. Rothenberger. You say under Paragraph IV, "Special mention should be made of my relationship to the SS, to the Party Chancellery, and to the Universities." Now you say, "Since 1933, my relationship to the SS in Hamburg was the best possible, not only with the senior SS and police Fuehrer--" And then you name four names--"but also with the various chiefs of the Secret State Police and the regional chiefs of the Security Service." And then you go on, "I thought in the beginning about joining the SS more frequently, but I also refrained from doing so in order to be free and independent as Chief of Jurisdiction and as President of the Court of Appeal, but in order to maintain the closest possible relationship with the SS, I persuaded some of my colleagues--" And then you say in parenthesis -- "Letz, Hartmann, Moeller, Barth to join that organization."
You continue, "For years I have been submitting long reports to the SD in order to, assert the interests of jurisdiction thereto.
You remember that paragraph very well, do you not?
A: Yes. May I say a few words concerning that paragraph? I believe that in my general statements concerning my position in Hamburg, I have already, at great length, expressed that I succeeded in Hamburg to maintain good relations with the Party and SS to the effect that the Hamburg offices wore persuaded, by my efforts, of the necessity of an independent administration of justice. For that reason, and that can be seen from this letter also -for that reason I had reports made for the SD. I quote, "So that also there the interests of the Administration of Justice could be asserted." Furthermore, I am expressing here that, "Also for that reason I considered it appropriate to persuade assistants of mine to be members of the SS, because of these assistants I could be absolutely assured that the interests of the administration of Justice would be asserted." I, myself, refused to join the SS because, as I am stating it here, "I, myself, as Chief of the Administration of Justice there, had to be independent and free, and remain so." It is precisely on that fact that I had succeeded in Hamburg to obtain influence on those positions and offices who throughout the Reich were the opponents of the Administration of Justice. Precisely that is the primary reason why I was of the opinion that if one only displayed the necessary amount of energy in fighting for the interests of the Administration of Justice, that it must be possible to maintain the interests of the Administration of Justice throughout the Reich, and to be successful.
Q: Dr. Rothenberger, I don't want to interrupt you or cut you unnecessarily short, but if my memory serves me well, you are now repeating your direct examination. If you have any more to say on this point, please go ahead, but I Think what you arc saying now is already in the record.
A: I do not know whether in relation to the various points of this document, I have to make any more comments.
Q: At the moment, Dr. Rothenberger, I am not going to ask you any more questions on that document. Perhaps we will come back to it later.
THE PRESIDENT: Mr. King, while you're on that subject would you pardon an interruption?
MR. KING: Please, yes.
BY THE PRESIDENT:
Q: Dr. Rothenberger, the names of certain of your assistants whom you persuaded to join the SS were given. What offices did they hold? What position did those persons hold, please?
A: Letz was my Personnel Referent, in charge of personnel matters, Hartmann. Moeller and Barth were assistants -- simple judges.
Q. They were judges?
A: Yes.
Q: They were associate judges in the court on which you sat as presiding judge?
A: No.
Q: What kind of judges were they?
A: In the Administration of Justice, they were active; that is to say, assistants of mine in matters of administration.
BY MR. KING:
Q: Dr. Rothenberger, without troubling you with the document, which was Exhibit 26, NG--15, I refer to the speech you gave at Lueneburg. I have just one or two short questions concerning that. Do you recall -- that was in 1943 -- do you recall approximately how long you spoke there in Lueneburg -- the length of the speech?
A. No, that I can no longer tell how long that speech lasted. I only see from the exhibit that this is only a part of my speech that has been submitted here; but it must have been longer than the part which is in evidence here; about the time that that speech took, I I can no longer tell.
Q. Dr. Rothenberger, how do you define an "asocial"?
A. My definition for an asocial is an individual who on the basis of his permanent behavior has demonstrated that habitually or professionally he acts against the interests of the community. As examples I should like to mention a habitual violent criminal; a professional burglar; that is to say the serious criminals as we say; a person who is an incorrigible.
Q. Do you extend your definition of an asocial to nationalities or races of people?
A. No, no, not at all.
Q. You were saying then that a Pole per se could not be an asocial?
A. No, a Pole per se, no; but, a Pole inder the same circumstances can be an asocial the same as a German.
Q. Yes; I understand that; do you apply the same standard to members of certain races -- the Jews for instance; is that right?
A. The same holds true as it does for the Pole, or the German.
Q. So that when the phrase used Jews, Poles and other asocials, you don't go along with that?
A. No.
Q. Do you have anything more to add on that?
A. No.
Q. I want to ask you one or two questions arising out of your granting or refusing to grant clemency while you were under secretary. It may not be necessary to produce the exhibit -- the document which is evidence. I will refer to it; it is Exhibit 130, NG--641. The facts were that these Poles were apprehended near the Swiss border, apparently in an attempt to get out of Germany into Switzerland; they were tried;
the case came up for clemency to you. Do you recall that case?
A. As for that case, I referred to that two days ago. I do not recall the case as such; only on the basis of the exhibits I can comment on it.
Q. Well, fine; all right. Can you tell me your practice, Dr. Rothenberger, in these clemency matters before deciding to grant clemency. Was it your practice to review the facts of the case in order that you would be better able to make up your mind as to what to do?
A. I had no practice in clemency cases, because only in few cases when the minister was absent and when there were urgent matters to be decided -- I decided clemency matters.
Q. Do you recall what you did in this particular case then? Bid you review the facts of the case?
A. Certainly; of course I examined the facts and the legal justification for the verdict. I had it reported to me and examined them carefully; and, since this was a case of treason -- of aid and comfort to the enemy -- and the opinion did not contain any doubt or objections as for facts and substantial law; since personal reasons for clemency were not submitted; I ordered that the sentence be executed.
Q. You say that on the facts that it was clearly a case of high treason?
A. No, it was not high treason.
A. A case of treason?
A. Yes, there is a principal difference.
Q. Yes, I understand -
A. It was a case of treason committed -- within the boundaries of the Reich.
Q. Do you know how the accused happened to be in Germany -- under what conditions?
A. No.
Q. You read the facts of the case, didn't you?