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?
A. I did, but I don't remember -- I don't remember the report as such.
Q. But you remembered it at the time, no doubt. If you read the facts of the case, you must have because there they are very clear.
A. The facts that were mentioned in the opinion, of course, those facts I knew.
Q. Yes, all right. Then, you know that these Poles were in the country as laborers, not citizens of Germany; that is the fact which you must have gathered, if, as you say, you knew the facts as represented in the opinion. Now, will you please tell me, Dr. Rothenberger, what loyalty a Pole brought into Germany as a slave laborer owes to the German state; and, how that Pole in trying to escape could be guilty of committing treason -- by that fact alone against the sovereign state of Germany?
A. I believe there is no country in the world where it isn't so that every one whether he is a citizen or a foreigner can commit treason.
Q. Can commit treason by trying to leave the country?
A. Not only by leaving the country, but by having the intention to take up arms against that country.
Q. Yes, all right, Dr. Rothenberger, that brings us to the next point. What do you mean by taking up arms against that country? What evidence did you have that this Pole was going to take up arms against Germany?
A. May I ask you to put to me the opinion again, because I do not remember at this time the opinion for that particular sentence.
Q. Document Book III-A. While that opinion is coming, I think we can proceed on this question. The opinion stated that these Poles were going to join the Polish Legion in Switzerland. You investigated that question and determined that there was a Polish Legion in Switzerland which they were going to join?
A. That question was not to be examined by mo; that question was already examined by the court and decided, and I am not in a position as the authority for clemency matters to examine the facts which had already been determined by the court in a new procedure of investigation.
That is not the task of the authority for clemency matters; that is the task of the court.
Q. And because the court said there was a Polish Legion in Switzerland which those men were going to join, that was sufficient for you in reviewing the case?
A. May I state my attitude to that only after I have read the opinion?
THE PRESIDENT: Dr. Rothenberger, do you recall whether the opinion indicated that the alleged Polish Legion in Switzerland was interned in Switzerland; do you remember about that?
A. No, no, I can't remember that. May I wait until the opinion is put to me? I do not remember the individual case at all. (Handed document book) May I read the essential passages from the opinion? The defendants were in Germany for the purpose of work. Three days after they started to work, two of them left their place of work without permission and fled in the direction of the German Swiss border at Bregenz, near Bregenz. During the night of the 5th July, they were picked up by a custom official at the railroad bridge loading into Switzerland, between the border points Luestenau and St. Margrethen, and were taken to the police jail at Bregenz. When interrogated, Iwaniszyn adopted the false name Serecka. On 7 August, 1942 he and Mendrala were brought to their former places of work at Kempton.
But soon thereafter both, together with the co-defendant, decided to make a new attempt at escape." Then I think I can skip something.
"The three defendants used their quarters that they shared to confer with Mendralla how they could manage to go to Switzerland in order to join the Polish Legion there. Obviously, for security reasons, they set out for the escape together, but then to head for the Swiss border separately.
"So, on the 13 of August 1942 the defendants and Mendralla left their places of work without permission and at first proceeded together in the direction of Bregenz, after they had removed the Polish insignias from their jackets, and then they were arrested. The defendants admit the essentials of these facts, but state that they did not know that a Polish Legion existed in Switzerland, and therefore they neither decided nor intended to go to Switzerland." And then I skip again some passages which are not important.
"These statements are not worthy of belief. All of the defendants had work in Kempten and were paid adequately as Poles. They had even less good reasons to leave their places of work without permission just in order to look for new employment, since they knew exactly that they would then be called to account for breach of contract, and that they could not keep the new jobs they pretended to seek. But how little they were interested in serious employment is sufficiently proved by the fact that they had also quit, without any good reasons, their former jobs in Leipzig," and so on. Then I may skip a few passages.
"On the basis of the experiences of the Senate in similar cases and according to the result of the numerous investigations made by the official of the police, Schleicher, who was working in the German-Swiss Border territory and was heard as a witness, the way chosen by the defendants had been used by many Poles escaping from the Labor Service in Germany to go to Switzerland and to join the Polish Legion there. There was a whisper propaganda among the Poles, especially as the Senate stated only yesterday in the sentence against Patoga in the region of Kempten since the Spring of 1942.
In consequence of this whisper propaganda, due to enemy influence, it was generally known that through the Consulate of the Polish shadow government or through the English Consulate in Switzerland the possibility existed to get from there by various means into parts of the Polish Legion a formation whose purpose, as known by the Court, is aimed at the restoration of an independent Polish State by military operations conducted on the side of the enemy and be separating the annexed eastern provinces from the greater German Reich by force."
I don't know whether it is necessary to go on reading, is it?
Q. Dr. Rothenberger, I didn't ask to read the opinion. I asked you a question based on it. If you want to read the whole opinion, I suppose I can't stop you, but I remind you that I only have a question before you for answer and it is not necessary -- it is entirely optional with you -- whether the opinion is read aloud or not.
A. May I ask you to repeat that one question, please?
Q. I believe, as defense counsel are fond of saying, it is a complex of questions. The first part of it is on what basis did you decide that these men should die for trying to leave Germany since they were not German citizens? The second question is what evidence did you have that there was a Polish Legion in Switzerland, especially in view of the fact that these men denied that they had ever heard of a Polish Legion?
I thought it might have been of interest to you, at the time you decided these men should die, to look briefly into the legal and the factual question.
DR. WANDSCHNEIDER: Kay it please the Tribunal, I object to this question, the question as to what reason Dr. Rothenberger had to make his decision in a case where the defendants allegedly only wanted to leave Germany. Dr. Rothenberger in great detail has explained that and already pointed out that he did not make his decision on these grounds, but because, on the basis of the sentence and the opinion, the case of treason was before him.
Be explained that in great detail, referring to the opinion and the reasons stated in the opinion. I think that that question has been pondered sufficiently and decided, and it is not necessary that he should speak about that once more.
THE PRESIDENT: Your objection is overruled.
A. I can only point out again that it is the task of the Court to elucidate on the facts; also to find out whether a Polish Legion existed or whether it did not. That question was answered by the Court in the affirmative and that answer was legally binding and it is impossible for the authority in clemency matters to submit the facts which have already been established in a court proceeding to a renewed investigation. If that weren't so, then that would mean that the authority for clemency matters could decide that a new trial should take place in order to clarify these matters, and that is not the purpose and the meaning of an authority on clemency matters and in addition to that, all the technical means are lacking to carry out that task.
It goes without saying that the basis for a decision in clemency matters are facts as established by the court, and those facts, as stated, were giving aid and comfort to the enemy and treason.
Q. I don't know whether it is possible to summarize your answer, Dr. Rothenberger, but I should like to try to do it -- Relating to the legal question, you say that these men committed treason. These nonGerman citizens committed treason in attempting to leave Germany because there was evidence that they were going to take up arms against Germany. Is that correct?
A. Yes.
Q. In other words, the legal question depends entirely on the factual question, the factual question being whether or not they were going to join the Swiss Legion. Is that correct?
A. That was determined by the court.
Q. And these defendants denied that they knew of the existence of a Swiss Legion; is that correct?
A. The court has established -
Q. Will you answer my question, please, yes or no? You may explain later.
A. I can't answer that with yes or no.
Q. You can answer that question yes or no. My question was whether or not the defendants denied that they knew of the existence of a foreign legion. That can be answered yes or no.
A. The court did not believe the defendants when they denied that.
Q. And you, in reviewing the sentence to determine whether these men should die or not, did not feel it necessary to have any further investigation of their repeated denial; is that right?
THE PRESIDENT: This question is clearly proper. There is no use in encumbering the record with objections on it. He may answer the question. You can register your objection briefly.
DR. WANDSCHNEIDER: I want to object to that question, yes.
THE PRESIDENT: The objection is overruled.
Again I can only emphasize that there is a principal difference of opinion between the prosecutor and the German and I believe also the foreign factors in clemency matters. It cannot be the task of the authority in clemency matters to investigate whether it should believe a defendant or should not believe the defendant. I did not even have the possibility to point out whether the defendant can be believed or not. That can only be the task of the court which makes the decision. I in this case was not the court to make the decision. It was, I believe, the People's Court in this case, yes.
Q. I think, Dr. Rothenberger, that we have had a sufficient explanation of your views as to why you couldn't take any action to save these men, in that case.
MR. KING: I would like to pass on now -
DR. WANDSCHNEIDER: May it please the Tribunal I don't want to raise an objection at this time, but just express a request.
Dr. Rothenberger was asked in his last question what were the basis in the final analysis for him in making his final decision on clemency matters and he has answered that he did not remember the case, so that, of course, he does not have to give any further reasons. Therefore, all he knows about this case he knows now from this trial, that is to say from the opinion as it was submitted in this document and I believe it is not more than fair that if an opinion of that kind is put to him suddenly that he ought to have the opportunity or should be given the opportunity not only to road the fragments to refresh his memory, but that he should have an opportunity to read the entire opinion, because essential matters are not even expressed by the statements such as the fact established by the opinion that the three defendants discussed it, that they wanted to enter the Polish legion, that, for instance, is a statement of fact, which, of course, within the scope of the statements made by this defendant is very important. Therefore, as a preventive measure, I should like to ask that if in the future he is requested to make explanations to extensive documents concerning facts which occurred years ago, the defendant should be afforded an opportunity before answering to read through the entire document at leisure.
MR. KING: I only
THE PRESIDENT: What is your next question. There is no question before us now - just a moment.
BY JUDGE HARDING:
Q. Dr. Rothenberger were you aware that this Polish Legion was interned?
A. No, no, that I don't know about. I don't know anything at all.
Q. Don't you know as a lawyer that no foreign legion could be organized in Switzerland to wage war against Germany when Switzerland was a neutral country?
A. About that I knew nothing. As far as I was concerned the existence of a Polish legion was not known to me before this case.
Q. I am not inquiring about whether it was known to you. I am inquiring about the law, if such a legion in fact existed if it would not necessarily be interned in Switzerland?
A. About that I lack all basic information in order to be able to judge that.
BY MR. KING:
Q. Dr. Rothenberger, you testified in your direct examination you first met Albrecht, the Brigadefuehrer, and personal adjutant of Hitler in '42, in 1942, in Hamburg. Do you recall a little more particularly now what month in 1942 it was that you met him?
A. Albrecht was not my personal adjutant, as I heard it, but he was the adjutant of Hitler and Albrecht
THE PRESIDENT: I am sorry, we have passed the time for our recess. A fifteen minutes recess will be taken.
(a short recess was taken)
THE MARSHAL: The Tribunal is again in session.
BY MR. KING:
Q. Dr. Rothenberger, the question which I had asked you just before recess was, can you tell me the month in 1942 in which you met Albrecht in Hamburg?
A. I believe that it was January or February.
Q. In any event, quite early in the year?
A. Yes, that is certain.
Q. Your memorandum, which eventually reached. Hitler's desk, has been submitted as Exhibit 27, NG-075. Can you tell me what would have been the earliest possible date, the earliest possible date, that that memorandum could have reached Hitler's desk?
A. I cannot tell you that; I can only say that Albrecht informed me, when I was in Berlin later on, that Hitler read my memorandum after his well-known speech. That was at the beginning of May.
Q. You say Albrecht told you that?
A. Yes, he did. That is also in agreement with the dates on this exhibit.
Q. There are, in Exhibit 27 --- your memorandum --- several prefatory letters. One of them is a letter to Schwab. He was in Hitler's outer office, was he not?
A. Do you mean Schaub?
Q. Schaub, yes.
A. Yes.
Q. Now, in that letter the date of May 7 is mentioned as a reference point, and it is stated that the Fuehrer received your memorandum "some time ago"; that is, some time prior to May 7. Is that in accordance with you recollection?
A. This letter states that the Fuehrer had received the memorandum "some time ago". Since, of course, I was interested in this affair at the time and wanted to know how Hitler came to see my memorandum at all, I asked Albrecht expressly when he, Hitler, had read it.
Thereupon, as I have already stated, Albrecht answered that Hitler read it after his famous speech. As reason for this, Albrecht stated to me that Hitler Q(Interposing) Just a moment, Dr. Rothenberger, We aren't talking about Albrecht now.
I am talking about this letter from Schaub, and I asked you a specific question I ask you, when it states in that letter that your memorandum had been received some tine ago--and the reference point is May 7--if is in accordance with your recollection. I take it that it is.
Now my next question is this. Do you have any specific recollection as to whether or not the "some time ago" refers to a period as long as two weeks?
A. I cannot tell you that. I am unable to say what "some time" means, whether it means that he received it a few days ago or two weeks ago. I can only say that he read the memorandum after his well-known speech.
Q. We will come to that in a moment. You do not exclude the possibility, do you, that your memorandum reached Hitler some time prior to the time he gave his speech on April 26, 1942?
A. I only exclude the possibility that he read it before. Usually such memoranda, when the Fuehrer received them, were not immediately read by him. He probably received a large number of memoranda, and he read very few of them.
Q. But he read yours, did he not, eventually?
A. Yes, without doubt he read mine. And if I may, I will now state the reasons which Albrecht mentioned, namely, that he himselfthat is, Albrecht--because he was in the Fuehrer's entourage at the time, saw how Hitler, in regard to the reactions to his speech at homo as well as abroad, was tremendously surprised and horrified, especially after Mussolini, at the beginning of May, gave a speech before the Italian Judiciary which aroused the opposite reaction -