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.
Does that name mean anything to you at all?
A No, that name I don't remember. Buck? B/U/C/K?
Q B-U-K-H.
A No.
Q That was the name of the prisoner in the concentration camp who was tortured to death.
A No, no, that name I don't remember. I ask to have this submitted to me or shown to me. May I ask during what year that allegedly took place, these two occurrences?
Q Perhaps in 1941 or 1942.
A No, no; with the best of intentions, I have no recollection of that.
Q Did you ever hear of the Fuhlsbuettel concentration camp? F-U-H-L-S-B-U-E-T-T-E-L?
A No.
Q You never heard of that camp?
A No.
Q It follows -
A Fuhlsbuettel?
Q Yes.
A I thought I heard Wolfsbuettel first. Was ist Fuhlsbuettel?
Q Yes.
A Fuhlsbuettel is not a concentration camp, but a prison.
Q A prison conducted as a concentration camp, then. Did you ever hear of a man by the name of Dusenschoen? D-U-S-E-N-S-C-H-O-E-N?
A No, without seeing any evidence of that I have no recollection of it. Dusenschoen?
Case III, Court III
Q You don't recall that he was a director of the prison Fuhlsbuettel, or concentration camp Fuhlsbuettel? You don't recall that he was a director of that?
A No, no, the prisoners were not subordinated to me; The prisons were under the General Public Prosecutor. Therefore, I have no recollection of the names of individual personalities. I had nothing to do with the prisons in Hamburg, nothing at all.
Q And you don't recall, I suppose, the quashing of the case against Dusenschoen for misdeeds committed by him against inmates of his concentration camp, or jail, as you put it? You don't recall anything about the quashing of charges which were sought to be brought against him?
A No, no; I have no recollection of that either, that I had anything to do with it.
Q I want to read you, Dr. Rothenberger, a portion of information which is in our possession. I say right now I am not going to introduce it in evidence at this time; we will present the documentation as soon as possible and in our own way, but this particular document will not be introduced in evidence. I merely want to read it to you and then ask you again if you have any recollection whatsoever of any of the facts, or any of the alleged facts contained in it. Now our information is to this effect, and I will read a portion of it:
"In order to remove the traces of the crime in such and similar cases, there was a verbal agreement, which was not put into writing, between Streckenbach, the Chief of the Hamburg Gestapo, the Reichstatthalter Kauffmann, Justice Senator Dr. Rothenberger, and Attorney General Dr. Graesser, according to which, contrary to the rules of the Code of Criminal Procedure, the bodies of concentration camp inmates who had allegedly died by suicide were to be transferred immediately to the crematory through the Hamburg State Office, thus by-passing the Public Prosecutor and the law courts."
Our informant goes on to say:
"I myself experienced such a case which should obviously have been dealt with in that way, but where the files "by mistake" had been channeled to the Public Prosecutor."
Do you still say that you know nothing about the facts, the alleged facts, which I have just read to you?
A I can only emphasize again that if today, after a number of years -- I don't know when that is alleged to have occurred -- from information, and I don't know what kind of information that is, a sentence is read to me, it is quite impossible for me to remember these matters without knowing what they deal with concretely and when that was supposed to have happened. I will only be in a position to comment on that after I have seen the details on it, in writing. With the best of intentions, I cannot recollect anything.
Q Dr. Rothenberger, doesn't it seem logical that if you were mixed up in a deal like this, in Hamburg, in 1941, in 1942, or for that matter, in 1931 or 1932, that you would certainly remember it?
A I can only say the same thing that I said before; I can only comment on it after I hear the details, but not if I hear only one sentence from information of which I do not know anything else. To the best of my knowledge and with the best intention I cannot recall the circumstances after that first question having been put to me; I cannot do it.
Q You recall quite clearly that you remember no abuses whatsoever in the concentration camps in Hamburg and in Mauthausen and in other places, don't you?
AAs far as I understand from that information it is a question of suicides, isn't it?
Q Yes.
A Or isn't it?
Q Yes, suicides are involved; you are quite right.
A Well, that a suicide might occur in a concentration camp or in a prison, or anywhere else, that is not a rare occurrence, is it? But I don't even remember that, that suicides occurred. However, that, of course, is possible, it goes without saying; that happens everywhere.
Q And the suicides that occurred in the Hamburg concentration camps, which later, upon the investigation of a few courageous individuals, were found to have been suicides induced by camp guards, you don't know anything about that? That type of suicide never reached your attention; is that right?
A I can only repeat again; I don't remember such cases.
Q You said before you knew this character Streckenbach. How long was he in Hamburg, or how long had he been in Hamburg, say, in 1942?
A I cannot say that with precision. I don't know when he left Hamburg. I believe he left Hamburg before the war, but I don't know that for certain. I could not say that with certainty. I didn't know him that well, and I didn't have much to do with him. I only know that he was transferred to Berlin, but I no longer remember when that happened.
Q And you don't know what his subsequent history was, what he did during later stages in the war?
A No, that I don't know.
Q Dr. Rothenberger, we will come back to this general subject again, and at that time perhaps we can arrange for you to see more of the document. In the meantime, if you have any thoughts that differ from what you have stated today, we would be glad to hear them at any time.
I wonder if you recall, Dr. Rothenberger, Exhibit 28, which is NG-629? That is in document book I-B. I will tell you briefly what it is; perhaps we won't need to get out the document book. However, if you want it, we certainly will get it.
Case III, Court III.
The facts -- part of the facts in that document to which I wish to call your attention are as follows: This is another one of those situation reports, if you recall, and in that report you state that fifteen cases have been tried in the Special Courts, mostly in Hamburg, that all the cases have been in violation of the Public Enemy Decree. Now you go on to say that fuller use of the Public Enemy Decree should be made. You also say that the Hamburg cases have met with approval in Berlin. Then you say two other things which are of interest. You say that the oral -- a report of the oral verdict in those cases is sufficient for purposes of having the deat sentence reviewed. And lastly you say the sensational aspects of these cases should not be played up in the press. Now I take it you recall this document and you recall these statements concerning the Special Court in Hamburg, is that right?
A: May I ask to have the exhibit submitted to me, because-
Q: Did you find the reference, Dr. Rothenberger?
A: Yes.
Q: I think you will find that what I stated is essentially what you say in the report. I want to ask you a couple of questions based on that. You speak there of the Public Enemy Decree. Yet this came at a time -
A: I beg your pardon. Not I speak of it, but the General Public Prosecutor does.
Q: All right. We will waive for a moment the question of who speaks about it, but the Public Enemy Decree is mentioned there, is it not?
A: It is mentioned the decree against gangsters. The decree against gangsters is mentioned. I no longer recall.
what that is. That is not the Volks-Schaedlings Decree. That must be something else. That is something else. That is not the Public Query Decree.
Q: That is my first question, Dr. Rothenberger. Do you know what particular decree this is?
A: I couldn't say that from memory. A certain decree was called the gangster decree, but from memory I cannot say what decree that is. I would have to look it up.
Q: The other, the public enemy decree, was not passed or did not become a decree until September of 1939, which was some few months after this report. So it obviously could not be the public enemy decree which we have talked about here in court a good deal in the past few months.
A: No, I also believe that the public enemy decree is something basically different than the gangster decree, but I no longer remember. I could no longer tell you out of memory what was contained in the gangster decree and what was meant by it. The word itself means that it was to apply only to gangsters. Therefore I ask to be afforded an opportunity to find out what was meant by gangster decree, which so far in this trial has not been mentioned.
Q: Well, Dr. Rothenberger, one of the reasons I have presented this matter to you is to have that answered clearly in my own mind. I didn't know, and I thought perhaps you did, since it was in one of your situation reports, I thought it likely -
A: No. I beg your pardon.
Q: -- that if you were reporting on a statute or a decree which had worked so well in your court, you might possibly know what the decree was about.
A: There is a misconception on your part. That is not a situation report which I rendered, but it is a report on a meeting at Hamburg in the course of which the General Public Prosecutor, who was concerned with that gangster decree, reported in the year 1939, and it is quite impossible for me today, eight years later, for the first time to know immediately what the General Public Prosecutor meant and what was contained in that gangster decree he referred to.
That I would have to look up in the Reich Gesetz Blatt. And before that time I am not in a position to comment on it.
Q: Well, that brings us around to the Public Enemy Decree which became an effective law on 5 September 1939, as a result of which, as you and I know, many cases reached the Special Courts. Isn't it conceivable to your mind, Dr. Rothenberger, that the rather glowing situation which is described in Exhibit 28, NG 629, gave you personally some hope that the Special Courts could deal effectively with the expected prosecutions under the Public Enemy Decree which was passed in the fall of 1939?
A: No. On the contrary, I am just told by you that the Public Enemy Decree dates of the 15th of September 1939 -
Q: 15 December, 1939.
A: --15 December 1939, but this meeting took place already on the first of February 1939, and certainly not one year before or eight months before one could have talked or thought about a decree which would only be promulgated in December thereafter.
Q: You are quite right. You have misunderstood me. Let me put the question again. As of the fall of 1939 after the Public Enemy Decree became effective law, that was on 6 September 1959, you had reason to believe, did you not, through your experience with the previous cases of which you speak about in Exhibit 28, you had reason to believe, did you not, that the Special Courts would be fully able to cope with the problems, the trials expected under the Public Enemy Decree?
In other words, it wasn't a new experience to try this type of case in Special Courts in Hamburg?
A: I believe I do not understand you. Here mention is made by the General Public Prosecutor about his experience with the people who had been sentenced on the basis of the gangster decree, that is, cases which had been tried before, and to draw any conclusions from that to the Public Enemy Decree which was promulgated 10 months thereafter, that I do not consider possible and applicable.
Q: You don't think that the experience which obviously you thought was good could serve any purpose at all in the Special Courts handling the Public Enemy Decree cases. You see no connection between that at all?
A: No, none at all.
Q: Do you recall the fact that you established a Special Court in Bremen the 14th of September, 1939?
A: Yes, I was reminded of that by an exhibit which has been submitted, and I already commented on that in my direct examination.
Q: Yes, I read your comments on that, Dr. Rothenberger. Now you said that when you established the Special Courts in 1933 actually you had no alternative because you were required to establish them; is that right?
A: In the year 1933 the Reich government had ordered that throughout the Reich Special Courts be established, and according to that instruction I also in Hamburg, as well as everywhere in the Reich, established a Special Court and mentioned already on the occasion of my direct examination that also from the legal point of view in considering the question whether that was admissible under the Weimar Constitution I asked for a legal opinion by my personal referent at that time, Prof.
Dr. Bertram and the then president of the District Court of Appeals, President Kieselbach. That can be seen from the exhibit which was submitted to me.
Q: In 1933, Dr. Rothenberger, pursuant to this new law, what kind of cases did you envisage which would eventually reach special courts for trial, the simple cases or the more complex cases?
A: Complicated as well as simple cases. What the nature of these cases was individually I could no longer remember, because I was never active in the Special Courts myself and had nothing to do with the jurisdiction of the Special Courts.
Q: Now this court that you established in Bremen in 1939, you established that on your own initiative; you weren't told by Berlin that it had to be established, were you?
A: No, not on my own initiative. It can be seen from the exhibit that by a decree of 1 September 1939 one Special Court each had to be established for each Gau. Up to that time and before that I have already explained in detail the Special Court in Hamburg was also active in Bremen, and owing to the fact that now for Bremen a Special Court of its own was established, it was no longer necessary that the Special Court Hamburg had to go to Bremen. It made it easier for the Special Court Hamburg, relieved the burden of work, and it was an advantage to the application of jurisdiction.