Another question, however, and that is the question which was made by the General Public Prosecutor, was whether new officials could be appointed who were Jews and that possibility in 1939 quite generally by now was excluded in Germany by law.
Q. Dr. Rothenberger, while I am passing around this next document I would like to ask you about your formal education. You received a classical education, did you not?
A. Yes.
Q. Did you ever study any biology?
A. No.
Q. Did you ever find in your interpretation of some of the Nazi laws that it would have been helpful to have had a few grounding courses in biology?
A, Yes.
THE PRESIDENT: Mr. Prosecutor, owing to the ignorance of at least one member of the Bench, we are unable to take advantage of these documents which are in German.
MR. KING: I underrate the education of the Bench.
THE PRESIDENT: At least without the aid of a dictionary.
MR. KING: I believe there is an English copy extant and I think it was mere sleight of hand that you did not get it.
BY MR. KING:
Q. Dr. Rothenberger, the document which has been placed before you is NG-1656. It is an Information for the Fuehrer Report. I would like to , with your concurrence, read it. You say; "After the birth of her child a full-blooded Jewess sold her mother's milk to a pediatrician and concealed the fact that she was a Jewess, With this milk babies of German blood were fed in a nursing home for children. The accussed will be charged with deception. The buyers of the milk have suffered damage for mother's milk from a Jewess cannot be regarded as food for German children. The impudent behavior of the accused is an insult as well.
Relevant charges, however, have not been applied for so far the parents who were unaware of the true facts need not subsequently be worried."
Do you recall the origin of this particular document?
A. I do not remember the facts. It is quite impossible that I wrote this because the Fuehrer Information I never drafted. I do not even remember whether it ever came to my attention later. I ask to be shown the original of that Fuehrer Information.
Q. I will be very happy to do that, Dr. Rothenberger. Is that your initial?
A. That shows that I have seen it later, but not at all that I was the author. It can been seen from the original, naturally, that the Fuehrer Information had neither a date nor a signature and the Fuehrer Information also shows that there is a notation on it "to the Under-Secretary" -- for information, that means. As I can see from the initial, it apparently came to my attention without, however, identifying myself in any manner with the contents of that Fuehrer Information.
Q. Have you finished, Dr. Rothenberger ?
A. Yes.
Q. Your feeling, of the moment, is that you had nothing to do with the authorship of this document?
A. I consider it quite impossible that I would have identified myself even at that time with such an opinion.
THE PRESIDENT: I have a question of information. Would your initials have been placed on it before or after the distribution of the document?
THE WITNESS: "Whenever such Fuehrer Informations were sent out -and I cannot see that that was the case --then they were afterwards brought to my attention.
THE PRESIDENT: It is now three o'clock. Fifteen minute recess.
(Whereupon, a brief recess was taken.)
HH00000042_new_0094-0124
THE MARSHAL: The Tribunal is again in session.
BY MR. KING:
Q Dr. Rothenberger, would you look again at NG-1656?
THE PRESIDENT: What exhibit number is that?
MR. KING: It has not been introduced yet, your Honor.
THE PRESIDENT: No. 1656?
MR. KING: Yes. It was a loose one which I distributed just before we went into recess.
THE PRESIDENT: Yes.
BY MR. KING:
Q Dr. Rothenberger, this Ministerial Councillor, Dr. Malzahn, who is mentioned in this Fuehrer information sheet -- he was in your department, wasn't he? He was in your department, wasn't he?
A I don't know Dr. Mialzahn at all.
Q Assuming for a moment that he was in your department, it would be the course of a memorandum such as this to come first to you for approval before it went on its next step?
A No. According to the contents of this Fuehrer information, this is a criminal case; the question there is as to whether fraud or insult occurred. That is the question. Therefore, Dr. Malzahn must have worked in the Penal Division, and this was not under me.
Q Assuming for a moment that it is a civil matter -- I think maybe we can argue about whether it is civil or criminal -- assuming for a moment that it was civil, that Dr. Malzahn was in your department, it would have been the course of this memorandum to go to your desk before it went to someone else, would it not have been?
A No; that is impossible from an objective point of view because, after all, this is a criminal case.
Q Wait a minute. I asked you to make a couple of assumptions. Now will you please answer the question in view of those assumptions? I said, one, assume that Mialzahn was in your department; and two, further assume that this is a civil matter. Now, will you answer the question on that basis?
And you can explain, if you wish, later.
DR. WANDSCHNEIDER: May it please the Tribunal, I object to that question. This is a hypothetical question, and every basis for comparison is lacking. It is clear that a criminal case, which was in no way under Dr. Rothenberger, went through quite different official channels; he would have received this information according to quite different principles if this were a case which was in his department.
THE PRESIDENT: The form of the question, I think, may be said to be objectionable, but counsel is surely entitled to ask this witness whether reports made by a Referent in a civil matter and in his department do or do not come to the witness before being sent elsewhere. That is a general question of practice, and you are entitled to ask it.
MR. WING: I will restate the question.
Q Was it the practice, when a subordinate of yours had written a report, that it came first to you for approval before it left your department?
THE PRESIDENT: You are referring to civil matters?
BY MR. KING: In civil matters.
A Civil cases never were used for a Fuehrer information. Thus, I cannot answer the question in regard to such cases. If otherwise, however, a civil case had to be decided, then of course the civil case first came to me for my information before a decision was handed down.
Q You haven't any explanation, I suppose, as to how your initial happened to be placed on this document, on the original copy of this document?
A Yes, I do have an explanation for that now. This criminal case was reported to the Minister. The Minister, apparently, decided that a Fuehrer information sheet should be written. I cannot gather from this document whether the Fuehrer information was actually sent out, because it is not signed and does not contain a date. After the Minister had heard the report and had ordered that such a Fuehrer information be prepared, the Referent, probably under the assumption that I would be interested in this -- or for any other reasons, I don't knew--wrote on it, "To Undersecretary," that is, "for his information."
And then I note, by my initial, that I had seen this for information.
Q And then the other initial on there would indicate what to you? There are two initials, yours and one other. The other is below yours.
A I don't know whose initials those are. Those are probably Maltzahn's, that is, those of the person who reported it to the Minister. However, I don't know that; I don't know those initials. In any case, it must have been somebody from Department IV.
Q And that is all the explanation you want to make in connection with that document?
A Yes.
Q You were editor, were you not, of a paper called "Racial Biological Articles", which was published for the information of Hamburg jurists in 1934 and 1935, were you not?
A I did not write any articles about that question.
Q Were you editor of that publication? Were you editor of that publication?
A May I explain?
Q Just a moment. May I ask another question? As editor of that publication, you selected the articles for publication, did you not?
AA few judges, who had taken a course at the university -- I believe it was in 1934 -- came to me and requested me to write a preface, I believe. I haven't seen that book again in some time, and I ask if you could possibly submit it to me. I believe they asked me to write a preface for the publication of their articles. They had taken a course under a certain Professor Scheidt, at the University of Hamburg. I cannot say anything about the contents of the articles today, from memory.
In order to do so, I would have to see the book again.
Q I don't think you answered my question. I will ask it again. As editor, did you or did you not select the articles which appeared in that publication?
A No, I did not make the selection, certainly not. I only recall that I wrote a preface for the book. I cannot recall exactly who the editor was, after 13 years. If possible would you please submit the book to me?
Q And all you did was merely to write a preface to that publication, and someone else selected the articles; and when the publication appeared, just your preface, no reference to you as editor appeared? Is that right?
A I don't think so, but please submit the book to me again, because I can no longer remember the details.
Q Dr. Rothenberger, we may have opportunity to return to this subject, in which case we certainly will submit the publication to you.
Dr. Rothenberger, you told me this morning that you read Hitler's "Mein Kampf" and knew the Party platform well. You recall a speech which Hitler made, a rather well publicized speech of his made before the Reichs tag on 30 January 1939. I have the "Voelkischer Beobachter " here for 1 February 1939 which carries the text of the speech. I will have some one bring it ever to you. I am sure that speech is familiar to you, is it not?
A.- No.
Q.- You never heard of it before?
A.- It is absolutely possible that I read the speech at the time. That happened on 2 February 1939. I can answer that question neither with yes or nor with no. That is absolutely impossible. I did not read every speech by Hitler.
Q.- Toward the beginning of the speech I think you will find a marked passage in the photostatic copy of the newspaper which you have. I want to read that to you. This is Hitler speaking. "If the international Jewish financiers within and without Europe succeeded in plunging the nations once more into a World War, then the result will not be the Bolschevisation of the world, and thereby victory of Jewry, but the obliteration of this Jewish race in Europe." Now whether you heard, read, or otherwise remember this speech, or particularly this passage of the speech, you knew, did you not, what Hitler's stand was on the Jewish question?
A.- As far as I am able to remember today, I did not read this speech and did not listen to it. That Hitler represented a strong attitude, especially since the beginning of the war, on the Jewish question, that was generally known in Germany.
Q.- Where were you on the 20th January, 1939? You were in Germany, weren't you?
A.- Yes, I believe that I was in Germany, but where -- well, probably in Hamburg.
Q.- And the people in Hamburg didn't listen to the Fuehrer's speeches:
A.- They did not do so in general, especially in Hamburg. People were very reserved, especially in Hamburg.
Q.- And they didn 't read their newspapers in Hamburg?
THE PRESIDENT: We think that question is a little foolish.
MR. KING-: All right, Your Honor, I will withdraw it.
BY MR. KING:
Q. - Dr. Rothenberger, I would like to come back to Exhibit 27, which is NG-075. That is, of course, your memorandum to Hitler or your memorandum, rather, which eventually reached Hitler and on which you and through which you attribute your appointment to the position of undersecretary. The purpose of my examining certain phrases from this speech is to enable me better to understand what your new program for the independence of the judiciary was. I am sure you know that memorandum much better than I do. I want to read to you several paragraphs from it. You say in one place -- for the benefit of the translators these excerpts will be very shorty You say in one place, "Law must serve the political leadership." Then you say in another place on Page 3 of the document, "He who is striving toward a new world order cannot move in the limitation of an orderly Ministry of Justice. To accomplish such a far reaching revolution in domestic and foreign policy it is only possible if on one hand all out moded institutions, concepts and habits have been done away with, if need be in a brutal manner." Then you say still further on, "The fuehrer is the supreme judge, Theoretically the authority to pass judgment is only his. " Then you say still further on, a judge who is in a direct relation of fealty to the Fuehrer must judge like the Fuehrer." All of these phrases which I have read appear in that memorandum, and based on them I want to ask you this, and perhaps several other questions. You say you have repeatedly said that the purpose of your program was to establish an independence of the judiciary. However, the essence of your program as it seems clear to me from reading your memorandum is that the Fuehrer is the supreme judge.
As you say here, theoretically the authority to pass judgment is only his. A judge in a position of direct relation of fealty to the. Fuehrer must judge like the Fuehrer. Now my question to you, Dr. Rothenberger, is simply this: When you speak of the independence of the German judiciary, how do you reconcile that with these statements that the Fuehrer is the supreme judge and that only he can actually judge and that all judges must really reflect his thinking?
A.- During my direct examination I have already tried to explain the thoughts which made me write this memorandum. It is extraordinarily difficult to do so briefly, especially to state one's attitude only in regard to two or three sentences which are taken out of their context. Therefore I am of the opinion that the memorandum as such should speak for itself and that I leave it up to the Tribunal to form its judgment about the actual thoughts contained in tho memorandum. And if in spite of that I may answer that question only very briefly in a concret manner, I have to say the following: In 1942 the authoritarian state was as such a fact in Germany. That is to say, Hitler was also the highest judicial authority, and if any chance or possibility still existed to remove all the damage which had occurred during the course of years and all the burdens with which the Administration of Justice was burdened by the Party and by the SS, we used to say at the time on the part of tho thousand little Hitlers who every day jeopardized the independence of tho individual judge, I am saying that under those conditions the only possibility to bring about any amelioration first of all was Hitler himself. That it was impossible to convince Hitler, I and later on everybody realized. But I believed that it was possible to convince him, and I had to seize that possibility as a last chance. And if it would have been possible to convince him, then in effect the independence of the courts would have been reestablished again. For in that case this direct relationship between Hitler and the judiciary which I asked for would have been established and all other influences which burdened every judge every day would have been eliminated.
Q Dr. Rothenberger, may I interrupt you at this point? I think that you are entirely too modest about the success of your program. If you meant what you said in your memorandum, and I assume that you did mean what you said, then isn't it true that your program was a complete success, since the final result was that the Fuehrer became the supreme judge? Isn't that true?
A The fact that after only 15 months I again left my office is probably the best proof of the fact that my program was a complete failure.
Q Dr. Rothenberger, do you distinguish between the success of your program and your own failure to get along with people in the Ministry? Isn't it possible that those two factors are separable?
A No. A second reason also speaks for the assumption that it was a complete failure -- and that it is the intervention of outside offices with the activity of the judges which I wanted to prevent -- it did not stop at all after this memorandum was submitted, but rather became worse. The independence of the court and the removal of the judiciary from being civil servants, which I was striving for, did not become effective at all. I request the Tribunal to tell mo whether I should go in to more detail in regard to this problem, which of course is a fundamental problem, or whether I should not say any more about it now.
THE PRESIDENT: We will not interfere at this time.
BY MR. KING:
Q Dr. Rothenberger, I am frankly puzzled by seemingly contradictory statements in your memorandum. Let's go over it once more. You say, on one hand, that you want an independent judiciary. You say, on the other, that the Fuehrer is the supreme judge and all judges must act like the Fuehrer.
Now, unless you mean that all judges must act in accordance with the wishes of the Fuehrer, your memorandum means absolutely nothing and is purely double-talk. Now if that isn't what you mean -- if you don't moan that the Fuehrer's decisions should be the final decisions -just what do you mean by all of that talk of the Fuehrer being the supreme judge?
A I said in my memorandum that theoretically the Fuehre is the highest judge in Germany; that the individual judge, in his decision, must be independent, even in his relationship to the Fuehrer, I also expressed. What I attempted to achieve first was to eliminate all other influences on the judge, and therefore to establish this direct connection between the Fuehrer and the judge. Therefore my suggestion, in order to say it clearly, to put in place of the influence of Bormann or Himmler, to create the so-called "Judge of the Fuehrer," who would influence the Fuehrer in the capacity of a judge, and therefore not only in the field would he try to direct the development in Germany into quite different channels -- not only in a legal respect -- but in every respect.
Q Let me put this question to you. If, under your program, as you envisaged it in 1942, a judge came to a decision and that decision was known not to be in accordance with the Fuehrer's views, in your opinion, whoso opinion should have prevailed, as you intended it to work out?
A The decision of the judge.
Q Then what do you mean when you say the judge must judge like the Fuehrer?
A The Fuehrer does not have the right to touch a decision made by a judge.
Q Dr. Rothenberger, we know that that isn't so in practice, don't we? We have soon instances where it didn't work out that way, haven't we?
A Unfortunately, after I wrote this memorandum, especially here in this trial, and also when I was in Berlin already, I found out that the Fuehrer acted in a different way. The purpose of this memorandum, however, was merely the following: to convince the Fuehrer that the men who had influenced him so far and in that direction were wrong. My knowledge from Hamburg was not sufficient in order to know already at that time that the Fuehrer himself could not be convinced. But that is not only my own tragedy, but the tragedy of the entire German people.
Q Did you over consider the possibility that the Fuehrer in reading your memorandum read it literally and decided that when you said "The Fuehrer should be the supremo judge," that you meant what you said? Did you over consider that possibility?
A Yes, I considered that possible.
Q Do you have any fooling that in practice it didn't work out that way? In fact, I think the evidence adduced here at this trial tends to prove that, don't you believe, that by the end of the war the Fuehrer really became the supreme judge and interfered with all judicial decisions? I mean it was possible.
A I saw that later, and if I had known that before, I would not have undertaken this daring attempt, because there was no hope for it from the very beginning. But at the time, I thought that as a jurist I was under an obligation to make this final attempt, because I just could not accept the conditions which existed.
Q You knew what the party platform was, did you not? You knew what Hitler had said in Mein Kampf, did you not?
AAbout that problem, ho did not say anything in a negative way in his Party platform, and not in Mein Kampf either.
Q Well, as a reasonable man, Dr. Rothenberger, you knew what his attitudes were on all of these questions, and if your program embodied having him become the supreme judge, you know fairly well how he would judge on all those questions, did you not from your prior knowledge?
A No. I can only emphasize again and again that as long as I saw the possibility of influencing him, I considered it my duty to make this attempt; otherwise I would have been a fool.
Q No one denies that you did not influence him, Dr. Rothenberger, the implication is quite the contrary: that you did, and that you were completely successful.
A I did not have any success. That is just it. Hitler could not be convinced.
Q He became the supreme judge, did he not?
A In effect, he interfered with the Administration of Justice, as we know now.
Q All of the judges in Germany wore in a position of fealty to the Fuehrer, were they not?
A No fealty, no.
Q What do you understand by "fealty"?
A Dependence upon him.
Q And you don't think judges in Germany at the end of the war wore dependent on Hitler?
A I just wanted to prevent this fealty.
Q You wanted to prevent it?
A Yes.
Q That is not what you said in your memorandum. You said in your memorandum, "A judge who is in direct relation of fealty to the Fuehrer must judge like the Fuehrer." That doesn't sound like you wore trying to prevent it. That sounds like you wore trying to induce it.
A You do not distinguish between the dependence and fealty on the one hand, from an obvious natural relationship of trust and confidence which every German and therefore every judge too should have in the Fuehrer.
Q Let's pass on for a moment to Exhibit 26, NG-415, which was your speech at Lueneburg. You have a copy of that before you, do you not?
A I believe so, yes.
Q Now this speech was delivered approximately a year after you finished working on your memorandum, and approximately seven months before you wore discharged. In that speech, speaking of the essential features of the Fuehrer's personality, you said, "He had a fine feeling for justice. He had undisputed inner authority by virtue of his personality, and ho has independence and impartiality of judgement never before heard." You also say that "The now and second decade for the German judicial administration began on the occasion of the speech by Hitler on the 26 of April 1942 and culminated on August 20th." I believe August 20th was the date on which you,yourself, received the appointment as Under-Secretary.
Now, at this time, in February, 1943, you still adhered very closely to the views you expressed in your memorandum after your program had been in force -- or at least after you had been in office for six months or more; that is right, isn't it?
A.- After this time I had already experienced the first difficult and serious disappointments in Berlin; first, in relationship to Thicrack; and secondly, with the party chancellory; and third, with Himmler. At that time I was obligated the more and convinced that the only change in the course of affairs could originate with Hitler; and, for that reason I was at the time, to be sure, harboring the hope that Hitler could be convinced by ma.. Therefore, at that time, too, I still made those attempts.
Q.- You also said in Lueneburg that part of the program was that asocial and inferior characters must be ruthlessly annihilated; you believed that was a necessary part of the program as well, did you not?
A.- Not, not at all.
Q.- Why did you say it then?
A.- In regard to that point of my Lueneburg speech, I already testified extensively and I stated my opinion and I don't know whether I should repeat that.
Q.- You use your own judgment, Dr. Rothenberger.
A.- I can only repeat that I was speaking to judges; that I was speaking of the orderly administration of criminal law; that I gave two, that is throe directives to the criminal judges; first, equal treatment; equal charges; and justice for all; secondly, leniency - to act leniently and generously -- and not bureaucratically if one is confronted with people who arc all right and who only faulted once; and, in the same sense ruthlessly against asocials.
Q.- Yes, that is what you said in the Lueneburg speech. I just -
A.- As far as I remember, I already stated that during my examination and already remarked that that exact wording of the speech did not ori ginate with me.
Q.- But it is the very essence -- is it not -- of what you said. You don't quarrel with any of the facts as they are reported in the Lueneburg speech, do you?
A.- What I have just stated was exactly the meaning of the thing that I occasionally also expressed in other speeches.
Q.- When did you first come to believe, Dr. Rothenberger, that your program according to your own belief had failed to succeed? Was that coincident with your discharge from office?
A.- I cannot state one day in answer to that question, but it is a question of development. Misgivings I had from the very first day of my activity in Berlin, and they increased from month to month, because only in Berlin did I get an insight into the actual relationships of power within the Reich. From my place in Hamburg I had formed a completely wrong picture in that respect.
Q.- But you were convinced when you left the under secretary's office of perhaps several facts: One, that you could no longer get along with the Justice Ministry personnel; and, two, that your program had failed. Were you convinced of that then?
A.- My behavior and attitude in Berlin was the same as before in Hamburg, namely, I did not curb any one who didn't want to go along but against those who didn't want to go this way I fought, and I brought it to a break by this behavior.
Q.- Dr. Rothenberger, just perhaps one more question. Because you, yourself, did not find yourself on the best of terms with Thierack and others with whom you had to deal, there was naturally animosity between you. Was part of this animosity also formed on the part of Thierack and others because of the tremendous number of personnel which you brought with you from Hamburg to help you carry out the job which you had been assigned to do? There was some feeling along that line, wasn't there?
A.- No; that was an entirely unimportant question for Thierack.
Q.- We have heard about the resentment of the invasion from Hamburg, and other such phrases, You discounted that pretty largely in your own mind?
A.- In a Ministry where there is the entire personnel of about six hundred people, it is not important at all whether two higher officials, that was Letz and Segelke, some judges; some officials in medium positions, and two secretaries - altogether there were probably 12 or 13 -came along from Hamburg to Berlin. The reason for me taking this step was that I needed men who had worked together with me on the preparatory work of my judicial reform.
Q.- Dr. Rothenberger, just one final question concerning the speech at Lueneburg. Are you sure that you did not in this case prepare the text of that speech in advance of its delivery, and that, in fact, the text which is in evidence is the one you prepared?
A.- I don't believe that I did, because it was not my usual practice to prepare a text of a speech in advance word by word.
Q.- And that is all you have to say on that question?
A.- Yes.
MR. KING: We have no more questions on direct at this time to ask of this witness. However, as Mr. La Felette said this morning, a great deal of Dr. Rothenberger's testimony on direct is supported by documents which we have not yet seen, and we would like to reserve the right to recall Dr. Rothenberger when those documents are prepared.
I ask at this time that NG-1656 be identified as Exhibit 535.
THE PRESIDENT: The exhibit will be marked for identification -
MR. KING: And I simultaneously now offer it as Exhibit 535.
THE PRESIDENT: The exhibit is received. And may we commend that practice of at least having an exhibit marked for identification when it is used in cross examination. Merely for the completeness of the record, I think it is advisable to do that.
Dr. Rothenberger, -
MR. KING: Your Honors, this morning -
THE PRESIDENT: I desire to ask a question of the witness before you proceed.
MR. KING: I am sorry.
BY THE PRESIDENT:
Q.- As you recall now, would you say that your purpose in the memorandum to Hitler was limited to the reorganization and reform of the judicial system? There appear perhaps to be broader purposes expressed, and I want your answer on that question.
A.- The memorandum contains -- I would like to say the achievement of the first stage. This stage was first, to submit to Hitler lines of thought which had not been submitted to him from that side heretofore; and, therefore, the first stage was to make suggestions in regard to judicial reform. This was conditioned by tactical considerations because it was obvious to me that if I would immediately state my final aims in dry wors, that Hitler could not be convinced at all in that case; and, beyond questions of judicial reform, this was possible, of course, only to serve as a means towards a higher aim, and the higher aim of the reform of the German Administration of Justice was to create autonomous law which would be embodied by a high corps of judges, a condition which we had never experienced in Germany so far.
Q.- My attention was directed to this question by the language, apparently used with approval, in which you refer to the project and I quote: "To organize Europe anew and to create a new world philosophy." I gathered from that that the scope of your purpose was broader than the mere reform of judicial procedure.
A.- No, Your honor, that is not correct. It does not say"world philpsophy", but "order"; that must have been translated wrong.
Q.- Is the phrase to "organize Europe" anew one which you find?
A.- No, to order.
Q.- To order Europe anew?
