Q. Excuse me, Dr. Rothenberger.
A. Excuse me. -- which was supposed to bring about the opposite effect from Hitler's speech.
Q. Dr. Rothenberger, excuse me a moment. You have gone into that quite thoroughly in your direct examination and I have read that, so I am quite familiar with what you are saying. I will put the question to you quite simply, Dr. Rothenberger.
I think, based on the evidence before me, that Hitler had your memorandum before he made his speech, and that probably some of the suggestions he made in his speech of April 26 were based on your memorandum. What evidence do you think there is against that point of view?
A. Against this opinion I have not only the evidence, the proof of what I actually know about it, but furthermore, the fact that the contents of my memorandum with all clarity emphasize the necessity of an independent personality of a judge and describe the dangers for a state in which such an independent judge does not exist. And I cannot imagine that when Hitler read such a thing he would in public state the opposite, namely , that he would announce that the judge can be discharged. Those are the two elements.
Q. You recall, Dr. Rothenberger, a correspondence that took place between Albrecht and yourself. I think it has been introduced in evidence. I have a copy in German of the original here and I would like to show it to you and then ask you one question. The first is a letter from Albrecht dated 27 May 1942 addressed to you at Hamburg, of course. The next letter is a letter of 3 June, 1942, which you yourself wrote in reply to Albrecht's letter. Now I would like to read to you, Dr. Rothenbeeger, the first sentence in your reply to Albrecht, and it is as follows: "My Dear Brigadefuehrer, Your letter of May 27 of this year brought great joy to me and was invaluable for my future work. Although I believed before, despite, or moreover, because of the Fuehrer's speech, to be on the right track, the assurance which I have received through your letter is even more valuable." Can you tell me, Dr. Rothenberger, what assurances you received from Hitler's speech as you mentioned here that you were on the right track? Doesn't that sound as though you thought at that time that he had the opportunity, that is Hitler, to read and examine your thoughts on judicial reform?
A. I cannot deduce anything from this letter as to the time when Hitler read my memorandum. I expressed by this letter this same thing that I emphasized repeatedly here that I believed that a judicial reform was necessary and that I especially after the Hitler speech was convinced of this necessity, the more that Hitler had to be occasioned to fundamentally change his attitude toward the Administration of Justice.
Therefore I herewith affirmed that I believed that I was on the right track.
Q. Is that all, Doctor?
A. Yes.
Q. May I have once again the reasons why you did not immediately publish your compendium?
A. It was never my intention to publish my memorandum, and I never published it.
THE PRESIDENT: Just a moment, please, Would you clarify one matter for us all? You have been referring to his memorandum which Hitler received, and the witness also spoke about the preparation of a long report to be made at a future time.
MR. KING: Yes.
THE PRESIDENT: Which do you refer to in your question as the compendium?
MR. KING: I refer to the latter, the book. As I understand it, the memorandum was never to have been published except as a memorandum to Hitler. It is the proposed publication of the longer work to which I refer and about which you testified in your direct examination.
A. I don't know which memorandum you are referring to at the moment. I assumed that you were speaking of the memorandum that I spent to Hitler. Or do you mean another work?
Q. I am referring , Doctor, to the larger, more extensive work which you wanted to have published.
A. You mean the book "The German Judge," "Der Deutsche Richter"?
Q. I mean that book.
A. Oh, I see. Yes. We did not speak about that so far, therefore I did not know what you were referring to.
Q. You spoke about it in your direct examination.
A. Yes, when I was dismissed.
Q. Now may I have once again the reasons as to why that was not immediately published in accordance with your desire?
A. As long as I was in Hamburg it was not my intention to publish it. When, however, I was then called to Berlin and now as confronted with the task of carrying out these plans, I considered it to be necessary that the German public and in particular the German judiciary should be informed about these plans. And then I decided in regard to my preparatory work which I had done during the last years in Hamburg, and of which work the memorandum to Hitler was only a short excerpt, I decided now to publish these in the form of a book.
Q. And when did you reach that decision, Doctor Rothenberger?
A. I can no longer remember the exact point of time but it was very soon after I entered office. Very soon after I assumed my office in Berlin, so it must have been approximately in September.
Q. Yes. I would like to read another paragraph from your letter to Albrecht. You say -- you will find it in your copy. It is the last paragraph. You say, "On request of the Party Chancellery I refrain for the time being from the publication of the details of my work. I therefore regret not to be able to fulfil my promise to send you the complete work in book form." You remember that, and that is in accordance with what you said, as you remember it?
A. Yes.
Q. And the work to which you refer is the same book which you later tried to have published?
A. Yes, that is in agreement with what I just said.
Q. So that the decision as to your desire to publish it must have arisen some time prior to your going to Berlin, because this letter is dated June 3, 1942?
A. It may be that I had undertaken consideration of this question, whether I should some time in the future publish parts of this work, or not, but at that time I did not decide to publish. On the contrary, I decided not to publish my work.
Q. In other words, the objection by the Party Chancellery as you stated in your direct examination came considerably before Thierack had anything to do with your work; is that right?
A. I did not understand your question. Would you please repeat it?
Q. Yes. In your direct examination you said that the Party Chancellery had to review your work before it could be published, and that was made necessary by Thierack's machinations in connection with it. I say on the basis of this letter that it must be clear that the Party Chancellery took a hand in the publication of this long before you went to Berlin, since you state here that they have requested you not to publish it.
A. No. That has nothing to do with the later publication.
Q. Why not?
A. Because that was supposed to take place only half a year later. What is said in this letter to Albrecht has nothing to do with the later publication with the interference by the Party Chancellery which then prevented publication. From June till at least December that was the time when the Party Chancellery interfered and prevented publication. Between those times half a year intervened. It has nothing to do with it whatsoever.
Q. Yes, but during that intervening half year you state here you couldn't publish it because the Party Chancellery told you not to; isn't that right?
A. It is correct that the publication of a book at that time was dependent also upon the agreement of the Party Chancellery.
Q. And why in June, 1942, did the Party Chancellery not want you to publish that book?
A. The reasons behind this I found out neither on this occasion nor on the latter occasion. I could not find them out clearly. But the fact that the Party Chancellery prevented the publication of the book and finally and conclusively prevented it was proof for me that they did not agree to the contents of this book.
THE PRESIDENT: Would you tell me again the date when you went to Berlin?
THE WITNESS: On the 20th of August 1942.
BY MR. KING:
Q.- You would not exclude the possibility, would you, Dr. Rothenberger, that at that time -- June 3, 1942 -- the memorandum was in use by Hitler and Hitler had requested no publication be made of it or of the longer book, of which your memorandum is an extract, until further notice? You wouldn't exclude that possibility, would You?
A.- I consider it impossible that Hitler, himself, concerned himself with that question. I consider that impossible.
Q.- You mean Hitler did not have the time or the authority to order the publication of a work held up? He considered your memorandum important enough to read, didn't he? You were appointed on the basis of it, weren't you?
A.- Certainly, on the basis of the memorandum I was appointed, but that Hitler should personally concern himself with the question as to whether a book should be published or not, I cannot imagine, The Party Chancellery prevented this publication.
Q.- And from whom did the Party Chancellery take their orders?
A.- From nobody.
Q.- That is an interesting point of view, to say the least.
THE PRESIDENT: Just to get my understanding more clear. We have not seen this letter to Albrecht on June 3, 1942?
MR. KING: June 2, Your Honor -- I am sorry, you are correct/
THE PRESIDENT: June 3rd. Then from that letter, do we correctly gather that before you went to Berlin the Party Chancellery had refused you permission to you to publish some sort of a book or report?
THE WITNESS: I gather that from this letter. It reads there "I refrain from publishing the detailed work because the Party Chancellery does not desire it."
BY THE PRESIDENT:
Q.- May I ask you a few more questions on the same point? In your direct examination, you referred, in so many words, to the fact that you had warned Hitler about the danger to the independence of the judges. Do you mean the warning which was contained in your memorandum which ultimately come to him?
A.- Yes, I did.
Q.- I understood you to say this morning that you wondered how Hitler got your memorandum. Then I assume you didn't send it to him yourself?
A.- I sent it to Albrecht on his wish, and Albrecht, who was Hitler's adjutant, gave it via Albert Bormann to Hitler. Albert Bormann was the brother of Martin Bormann and they were bitter enemies.
Q.- Well, had there been some distribution of this memorandum to others beside the ones whom you have mentioned? Was it published or distributed in any way?
A.- No, it was not published.
Q.- It was sent only to the persons you have mentioned?
A.- Kauffmann also received it; that is the Reichsstatthalter of Hamburg.
Q.- I was interested in knowing the extent to which it became known by officials. You made the memorandum and you sent out how many copies, do you suppose?
A.- I do not recall that I sent them to anybody else at all; to Albrecht and Kauffmann, for sure, for Kauffmann told me at the time -that was at the beginning of the year -- "I shall try, if you do not succeed, to approach Hitler and to bring it personally to Hitler."
Q.- Then you did have an arrangement with Kauffmann that it should be brought to Hitler's attention?
A.- Yes. Kauffmann had made the same efforts that I did, which at the time was very difficult, since it was very difficult at the time to get anything to Hitler at all.
Q.- Yes. Do you know when you sent it to Kauffmann?
A.- At about the same -- it must have been when I had completed the memorandum -- that is in March 1942. The date that the memorandum bears is the 31st of March.
BY MR. KING:
Q.- Dr. Rothenberger, in your direct examination you referred to your attempt before the war: first you referred to your own visits to England and then you referred to -- not by name -- but you referred to the fact that you had sent other German jurists to England to study the legal system there, and in return you had encouraged, and in fact received as guests certain English barristers here in Germany to study the German legal system. Can you recall at this time any of the names of the German jurists who went to England as a result of this reciprocity arrangement?
A.- At the moment I recall the name, von Wedell.
Q.- How is that last name spelled, please?
A.- Von W-e-d-e-l-l, Also, Kisselbach, that is the son of the Minister of Justice for the British zone at the present time; and Siveking; and Winkelmann. At the moment, I cannot recall any other names, but there were more. There were several more.
Q.- And do you recall the names of any of the English barristers who visited you?
A.- I only recall the name, Mr. Anson, who was the intermediary in England for the barristers whom he sent to Hamburg. I believe he was from Middle Temple, but I cannot say that with certainty, He submitted to me the names of those barristers whom he later sent to Hamburg. A second name which I happen to recall just now is Mr. Langdon. He was the president of the training of young jurists in London. I believe the name of that agency is the Board of Education for Jurists. In England I lived with him for a period of some time, and he also sent some young barristers to me who were sent to Hamburg.
I recall a third name, Mr. Schiller. He was a barrister at law at the High Court of Justice. I worked in his office for some time.
Q.- Of the four German jurists whose names you have just given, who went to England, were they all judges, or lawyers expecting to become judges?
A.- They were judges and attorneys-at-law.
Q.- They were attorneys-at-law too? What commercial interests did the non-judges-- the attorneys-at-law-- have in the British Isle at the time they were sent over? Do you happen to recall?
A.- They had no special interest, but it was the general interest of the Hamburg jurists to get to know the British legal system and vice versa.
Q.- And while they were there -- the non-judges, that is -- they were free to accept appointments by British business men, were they not?
A.- They did not accept employment from British business men, but for a few weeks or months they stayed in England, and there at a court or in a barrister's office, they voluntarily worked in order to study the English legal system without any obligation.
Q. You don't recall the name of any other German jurists who went to the British Isles?
A. No, not at the moment.
Q. Dr. Rothenberger, I would like to have you have before you the Exhibit III for the next few minutes, which I believe is NG-388, in Document Book I-B. Dr. Rothenberger, the Document Book I-B containing Exhibit III has been placed before you. I wonder if I may ask you to turn to page 69 in the German text, and I will look at the equivalent paragraph on page 61 in the English. This refers -- this is from a situation report of yours, if you recall, and it refers to a visit which you made to a concentration camp in the Hamburg area. You say in order to smooth over the tension sometimes existing between the Secret State Police and the judges of the penal courts, I am agreed with the higher SS and police leaders that the concentration camps located in my district be visited by judges working for the political penal courts, and so on. My first question to you, Dr. Rothenberger, is this, if you recall the answer. What --- what tension of which you speak here existed at that time which made it advisable, so you thought then, to visit the concentration camp?
A. During my direct examination I already stated that the cause for my visit was given by some judges themselves; and that was, first, that the judges told me that general rumors about the conditions in a concentration camp were current in Germany and that they wanted to get some clarity on those rumors; and, secondly, in the individual criminal trials it happened also that between the police and the judges during the trial differences of opinion arose under the circumstances then prevailing; that happened of course.
What concrete individual cases the judges told me at that time is impossible for me to remember today. In any case, it was my opinion that it is basically not right to stand opposite these matters and these rumors with closed eyes, and I wanted to see matters clearly -- just as the judges wanted to; and the only correct way in my opinion, insofar as it is possible at all, is to go to a concentration camp and have it shown to me. I already emphasized that I, myself, was present when this concentration camp was shown to us.
Q. There are no other reasons that you recall now for the tension to have arisen in the Neuengamme camp?
A. After six years have elapsed, it is impossible for me to remember what the criminal judges told me in detail; probably there were attempts made by the Gestapo to interfere in the proceedings, but I cannot remember the concrete facts.
Q. Now, you said in your direct examination, Dr. Rothenberger, that on the occasion of this visit you saw no abuses being practiced on the inmates of the concentration camp you visited on that occasion.
A. No.
Q. Is that correct?
A. No, not of any kind.
Q. You said in your direct that you wanted to emphasize that this visit was in 1941.
A. Yes.
Q. Did you subsequently make any other visits to concentration camps in the Hamburg district -- or anywhere else in Germany?
A. No, not in the Hamburg district, but in 1942 I did; and, at that time again, it was due to my own desire.
Q. What camp was this, please?
COURT III CASE III
A. That was Mauthausen.
Q. With whom did you visit the Mauthausen camp in 1942?
A. I have already emphasized that Himmler had told me that in the future sentences would no longer be corrected.
Q. Suppose you answer my question first, Dr. Rothenberger, and then go on with your explanation. I asked you with whom you visited the Mauthausen concentration camp in 1942.
A. With my adjutant and the leader of Group Ostmark, Austria, who at the time was Kaltenbrunner; he was also present.
Q. He was in charge of all concentration camps in Germany, wasn't he?
A. No, not at that time -- not yet. Kaltenbrunner became Himmler's deputy only in 1943. Kaltenbrunner was at that time leader of Group Ostmark, Austria, and I met him only there.
Q. And he was studying for the job he later took over I take it?
A. I don't know what studios he made.
Q. He took a field trip to Mauthausen with you, didn't he?
A. No. He was there; he was living there; that was his home; and, when I made a trip to Linz, I availed myself of that opportunity to visit the camp Mauthausen which was there and to inspect it. The reason for this was that here too I wanted to examine and to take samples as to whether Himmler had carried out his assurances that he would.
no longer correct sentences, or, whether he did not keep this promise. On that occasion I was afforded an opportunity to speak to inmates. I did so; I took notes of their personnel data; and, I asked them why they were being kept there. Then, at the office, that is the administrative office, in the files I checked whether these statements were correct, and for what reason these people were being kept there. When I made these spot checks I could not find out that there was any case of a sentence being corrected.
THE PRESIDENT: What do you mean by corrected sentences? I don't quite understand. In plain language, what do you mean?
A. By correcting of a sentence we mean that when the court had pronounced a sentence, for example had condemned somebody to be imprisoned for a term of five years -- if the police now after these five years had been served, if the police arrested this man and put him into a concentration camp -- this is only an example of a correction. Or, even, and this is clearer, it happened that a person was acquitted by a court, and inspite of that the police put this man into a concentration camp. These are examples of correction of sentences.
THE PRESIDENT: In substance you mean -- violation of the sentence pronounced by the court.
A. Yes.
THE PRESIDENT: Yes, I understand.
BY MR. KING:
Q. Now, Dr. Rothenberger, in 1942, when you visited Mauthausen with Kaltenbrunner, did you have an opportunity to look around the camp as well as talk to some of the inmates?
Court No. III, Case No. 3.
A Only where I was led. From the chart here I have seen that Mauthausen consisted of 20 or 25 individual camps. That district was not familiar to me at all since I come from Northern Germany. I did not know the extent of that camp, of course.
Q Now, so far as you noticed, everybody was happy at that time? None of the inmates to whom you talked complained at all of any of the abuses which subsequently became know about Mauthausen, is that right?
A Happy and satisfied -- that is saying too much; but any complaints were not voiced in my presence and I did not observe any abuses either. I could not discover any.
Q You mentioned that you now know that Mauthausen contained a number of satellite camps?
A Yes.
Q What camp did you visit, the principal one?
A I don't know. I don't know the name of the particular camp.
Q Was it a large camp? How large?
A In the front there were large administrative buildings and from there we went quite a distance by car, about 40 to 50 kilometers. From there we went to a camp at a distance of about 40 or 50 kilometers and this camp was not very large.
Q Dr. Rothenberger, at Mauthausen or at Neuengamme or at any other camp did you ever hear of any abuses, atrocities, murders and tortures committed on the inmates of those concentration camps?
AAbuses were talked about in Germany during the war in rumors quite frequently, but there was never any talk about murders or of such abuses which we now all know.
Q But you personally had no close contact -- had no experience-in dealing with abuses in any concentration camp in Germany. Is that what you are saying?
A I did not quite understand. What was it I didn't have?
Q Did you know personally about any mal-treatment in any concentration camp in Germany?
Court No. III, Case No. 3.
A No, no.
THE PRESIDENT: Dr. Rothenberger, in that connection was any obstacle placed in your way for the purpose of preventing you from making the investigation that you did make in the Mauthausen Camp?
THE WITNESS: No, no, no obstacle was placed in my way.
THE PRESIDENT: You had no difficulty in making it?
THE WITNESS: I had no difficulties. On the contrary, I considered it especially important to speak with the individual prisoner without having an SS leader or camp leader present.
THE PRESIDENT: Do you know whether any obstacles were placed in the way of any other high official in the ministry of justice who might have desired to investigate the camps?
THE WITNESS: I don't know anything about that.
THE PRESIDENT: That is all.
BY MR. KING:
Q In connection with the same subject, Dr. Rothenberger, tell me, if you will, do these names mean anything to you? Streckenbach?
A The name Streckenback is known to me because Streckenbach was formerly in Hamburg.
Q What was his position in Hamburg?
A He was chief of the Gestapo in Hamburg and then I don't remember when it was -- it was already during the war -- he was transferred to Berlin. However, in Berlin Himmler soon dismissed him and then he became a general in the Waffen-SS in the East. He was sent to the front.
Q Do you know also either of these two men? I think the answer must be in the affirmative because you referred once to Karl Kauffmann in your direct. He was Gauleiter of Hamburg, was he not, and then the attorney-General in Hamburg Dr. Dresdner. You know him, do you not?
A Yes.
Q Let me ask you again, before I proceed to the next set of questions, did you ever hear of any violent death to inmates in concentration Court No. III, Case No. 3.camps in the Hamburg area?
A No, never.
Q And the names of these three men that I have just asked you to identify, do not recall to your mind any violent death of any inmate of any concentration camp in the Hamburg area?
A No, I never heard of such a case.
MR. KING: I ask the Court that I may be permitted to continue this line of questioning on concentration camps after the lunch hour.
THE PRESIDENT: You may do so. We will recess until one-thirty this afternoon.
(Whereupon, a luncheon recess was taken.
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 21 July 1947)
THE MARSHAL: Persons in the courtroom will please find their seats.
The Tribunal is again in session.
THE PRESIDENT: Before the Prosecution resumes the cross-examination several matters have been presented to the Tribunal for our decision.
I do not at the moment recollect the name of the expert witness, who is a professor in the law school and who is to be a witness. Would you inform me of his name, Mr. Wandschneider?
Dr. Wandschneider: May it please the Tribunal, the name of the expert witness is Professor Niethammer.
THE PRESIDENT: The Tribunal is of the opinion that there is a serious misapprehension as to the necessity for the production of witnesses at the time when they are required as a witness in this Tribunal. We recognize no right on the part of any prospective witness to say whether he can conveniently or cannot conveniently attend as a witness at this Tribunal. We understand from the defense counsel that this witness is a necessary one and that it would expedite matters to have him examined in the immediate future. If he doesn't come voluntarily and if the defense counsel wants him here as a witness we will order him brought here, and his convenience, much as we would be glad to accommodate him, will not be considered at all. Have your witness here and if he doesn't come at the time you want him, notify the Court and we will produce him for you.
Now those rules apply throughout, they apply in America and they should be applied here. The witnesses must be produced at the convenience of the Tribunal and in order to expedite a fair trial for the defendants themselves. You have indicated his early appearance is necessary for your defense and he will be produced.
Now we had a motion presented and supported by a number of defense counsel, for eight days delay.
Their reasons appear prima facie to be somewhat persuasive but when we considered the record we find them very much less persuasive. The Prosecution rested on the 21st day of May. Defense counsel desired time in which to prepare their cases for presentation. The Court reconvened in its re-constituted form on the 23rd day of June, more than a month thereafter. During the noon hour we have availed ourselves of some information from the translation department and the defense information center and we have here a report concerning the document books, which are either ready or in the course of preparation. It is one thing, gentlemen, to comply with the two weeks rule, under which you present your documents for translation. It is quite another thing to wait for two or three or four months and then just two weeks before your defendant takes the stand to request that these voluminous books should be translated and multigraphed. If you would desire to avoid the inconvenience of examining a defendant before the document books are ready for distribution you must do that by presenting the material to go into the document books without delay. The two weeks compliance with the rule will not suffice in the event that you come into Court and say that the document books are not ready. We understand here that a number of the defendants have not yet submitted the material for any document books whatever. It will not lie in the mouth of any such defense counsel to wait until he is ready to examine the defendant and then say: "We want a postponement because we haven't the document books." Some of these document books are ready. We understand that the five document books of the defendant Schlegelberger have already been received in evidence. We know they have been. We hear rumors of an additional or supplemental document book but we are unable to find anything about that at all thus far. If there is such a book, we should be advised as to the situation with reference to it. As to the defendant Klemm's books, document books 1, 2, 3, 4, 5 and 9 have been delivered by the translation department to the defense information center. 7 and 8 are translated and the stencils are being cut. 6 has never been received by the language division at all.
The Lautz document books, 1, 2-A and 3-A have been translated and the English copies are ready, though the German copies apparently are not.
I will not read all of this summary but the Tribunal wishes to give clear and concise notice to defense counsel that if they are to have their document books at the time they examine their defense witnesses they must present them without delay without waiting for the two weeks preceding the presentation of the defendant on the witness stand.
So far as these defense counsel who have document books ready, we are willing and glad to have them presented in evidence before the defendant Lautz' case is commenced.
The motion, however, for eight days postponement of the trial is denied. You will have to proceed in regular order and get your document books as quickly as you can.
You may cross examine.
CURT ROTHENBERGER (Resumed) CROSS-EXAMINATION (Continued) BY MR. KING:
Q Dr. Rothenberger, you have had an opportunity to think over the question which I asked you just before we recessed for the lunch hour. Is your answer still the same?
A Yes.
Q Specifically, Dr. Rothenberger, do you know, does your recollection serve you to remember, of an arrangement, an agreement, which existed in Hamburg between certain individuals and yourself whereby the deaths of persons in Hamburg concentration camps, who had supposedly committed suicide, were not investigated by the Prosecutor's Office, and their bodies were taken directly to the crematorium without post mortem examination whatsoever? Do you at this time recall any such agreement, understanding, practice while you were President of the Court in Hamburg?
A If I understand you correctly, you mean an agreement between myself -- and whom? Who else?
Q Never mind who the person is; do you know of such an agreement? Do you know of the suppression of reports by the Prosecutor's Office in which deaths which occurred in concentration camps, presumably suicides -- as a matter of fact, they were killings -- do you know of any agreement whereby an investigation of those deaths was suppressed or never undertaken?
A No; no. Of that I remember nothing. I ask to be shown any such agreement so that I can comment on it.
Q In due course, we will get around to that.
Did you ever hear of the case called -- I will spell it -- B-U-K-H? That was an instance, one outstanding instance, where the suicide, later upon investigation, was found to have been tortured and killed in that way.