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?
A.- To order -- and from the word order I deducted that it would have to be a legal order.
Q.- Well, then; is the word "Europe" properly translated?
A.- Yes.
MR. KING: Are there further questions from the bench? I would like to have identified at this time as Exhibit 536, the NG number will be assigned later -- the two letters on which Dr. Rothenberger was cross examined this morning. The first letter is dated May 27, 1942 and is from Alfons Broder Albrecht to Dr. Rothenberger. The other letter is dated June 3, 1942 and it is from Dr. Rothenberger to Mr. Albrecht.
THE PRESIDENT: It will be marked for identification 536.
MR. KING: That is right. The Prosecution has nothing further at this time.
THE PRESIDENT: Will the redirect examination be extensive?
DR. WANDSCHNEIDER: Yes.
DR. SCHILF: May it please the Tribunal, may I say something in regard to the document books for the defendant Klemm? I have made inquiries. The following document books have not yet been returned by the translation branch: 4, 6, 7 and 8.
THE PRESIDENT: We are merely attempting to arrive at the facts, of course. No were advised this noon that 1, 2, 3, 4, 5 and nine -- I beg your pardon. You are speaking of Schlegelberger documents?
Dr. SCHILF: No, about Klemm.
THE PRESIDENT: We were advised that 1, 2, 3, 4, 5 and 9 had been delivered by the Translation Department. Is that correct? Do you know?
DR. SCHILF: According to my information, which I received one hour ago in the Defense Information Center, according to that Document book 4 is not among those that were delivered. In addition, I may say that Document Book 6 was handed to the Translation Branch by me on the third of July. I made an inquiry and the handing over is noted down in a book submitted to me and I found out that I delivered Document Book 6 an the day I mentioned, that is, on the third of July.
Your Honor, the books which were returned by the Translation Branch have, however, not been mimeographed as yet. I heard today that they were sent to the mimeograph department, but they were not able to tell me when they would be returned to me.
THE PRESIDENT: We were informed that 3 and 9 would be ready this afternoon.
DR. SCHILF: I did not get any information about that at the defense information center this afternoon. The delivery by the translation branch, however, does not enable me yet to submit document books because they have to be mimeographed before I can submit them.
THE PRESIDENT: Of course, we will not require you to use your document books until you receive them. That is obvious. Do we understand that there arc four more witnesses ready for examination?
DR. SCHILF: Yes.
THE PRESIDENT: And as soon as these document books can be obtained it may facilitate matters to introduce them without longer delay.
DR. SCHILF: Yes.
THE PRESIDENT: There is hardly time to commence the redirect examination at this time. We will recess until tomorrow morning at 9:30.
(Whereupon, the Tribunal adjourned to 22 July 1947, at 0930 hours.)
Official transcript of the American Military Tribunal in the matter of the United States of America, against Josef Alstoetter, et al., defendants sitting at Nurnberg, Germany, on 22 July 1947, 0930-1630, Justice James T. Brand presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 3.
Military Tribunal 3 is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: Hay it please Your Honors, all the defendants are present in the courtroom with the exception of defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert has been excused. Let the notation be made. He have just been informed that the Klemm document books 1 and 2 are ready for use in court. Perhaps that will help out a little.
DR. WANDSCHEIDER: May it please the Tribunal, I request permission to begin the redirect examination of the Defendant Dr. Rothenberger.
THE PRESIDENT: Yes.
REDIRECT EXAMINATION BY DR. WANDSCHNEIDER:Q.- Dr. Rothenberger, yesterday with the aid of Exhibit 130 you were cross examined about the clemency case in the case Kalocki.
In the meantime you have had an opportunity to read over carefully the opinion. Will you please describe briefly again how you made your decision on the basis of the entire facts available.
A.- The open question that was addressed to me from what I had gathered that the condemned persons actually wanted to join a Polish Legion can be seen from the determination of the facts and the opinion. According to this Criminal secretary Schleicher who was examined as a wit ness, who was working on the German-Swiss border for some time testified that the way which the defendants chose had been used by tinny others before in order to get into Switzerland and there join the Polish Legion.
Furthermore, that as has been determined in other sentences pronounced by courts already in the area of Kempten since the spring of 1942 it was generally known that in Switzerland the consul of the Polish Government in exile was sitting who helped those Poles who had fled from Germany along. Furthermore it is stated that this Polish Legion was a unit which had the aim to bring about the reorganization of a Polish state by military means on the side of the enemy. Thus the Polish Legion itself apparently was not in Switzerland because Switzerland was a neutral country, but in Switzerland there was the mediating office according to the facts found out in the court, that is the mediating office for the Polish Legion.
Q.- Thank you very much. Dr. Rothenberger, yesterday on the basis of Exhibit 26, that is the report of the session of 1939 you were asked among other questions how one should behave if an arrest should be made and when there was a reason for arrest in connection with Jews.You have not made it sufficiently clear how -
MR. KING: I do not recall asking the question which defense counsel has said that I asked. I wonder if the translation has been bad or if defense counsel does not remember the question correctly. I did not ask the question in the form that he has just stated that I did.
DR. WANDSCHNEIDER: May it please the Tribunal, I want to ask nothing but to ask the defendant to explain the concept of arrest in this Exhibit 26, and I ask permission to ask this question.
THE PRESIDENT: You may do that.
BY DR. WANDSCHEIDER:
Q.- Please, Dr. Rothenberger, explain the concept of arrest.
A.- During this conference I have explained the decisions of the Reich Ministry of Justice about civil cases and in these civil cases the question of the reason for arrest was also discussed.
This does not mean the personal arrest of a person, but we are concerned with a special civil case procedure on the basis such a person who is owed something by a debtor can, in a special civil proceeding bring a complaint against the debtor. In civil cases we call this impounding "arrest proceedings". Thus it does not bring about a personal arrest of the debtor.
Q.- Thank you very much. In exhibit 28 a further concept of the gangster decree was testified about and you could not make quite clear what was meant by this gangster decree or ordinance. I am asking you, is it possible that the kidnapping ordinance or the auto trap decree could be meant by this?
A.- I have in the meantime found out that that is the case. Yesterday already I emphasized that the gangster ordinance about which the general public prosecutor reported in February 1939 could not be identical with the ordinance against public enemies as the prosecutor thought, because the decree against public enemies dates only as of September or December 1939. By the gangster decree one understood two decrees from the year 1938, that is first a decree about kidnapping, and secondly a decree regarding auto traps, the robber by means of auto traps.
Q.- Dr. Rothenberger, you were questioned extensively yesterday about your memorandum and you were asked about the meaning of the directives that you laid down there. For example, the independence of the judiciary of the judges, that a political leader could not be a judge at the same time, that the administration of law should remain with the administration of justice, and so forth. In that connection you were asked whether with this program you wanted to reinforce the position of the Fuehrer, that is Hitler, and I now ask you when you wrote that memorandum did you regard the position of Hitler, did you find the position of Hitler as the highest judge already in existence, or did you want to cement it theoretically and create it? In other words, was the fact of the highest judge a fait accompli for you or not?
At.- Yes, of course. Since 1934 already not only in Hitler's speeches but in all of German legal literature it was a fait accompli that in an authoritarian state Hitler was also the highest judge. That was nothing new that I created in this memorandum, but it was a fact from which I had to start and I only had to discuss the difficult problem and consider it how it was possible in such a state to create a really independent strong corps of judges. I tried to do that by first freeing the judge from all party political influences which assailed him daily from the Party or the SS. Secondly, I tried to point out to Hitler himself the dangers which were inherent in the fact that he was the highest judge and did not observe the independence of the judge. I supported this by historical examples -
THE PRESIDENT: You're repeating what you told us before and that is quite unnecessary. We will give careful consideration to what you have already said.
THE WITNESS: Yes, Your Honor.
BY DR. WANDSCHNEIDER:
Q A further question, Dr. Rothenberger. At the beginning of the memorandum, you said in 17 lines -- the entire memorandum comprises 26 pages -- you said that your judicial program would be undertaken at the time of the development when National Socialism began to order Europe anew. First of all, it's clear to order and to organize is the same thing. Now I want to ask you, is it correct that this of course was a political aim which was expressed here and which you made a basis of your program as such?
A In answer to the question of the presiding judge, yesterday I already answered that with this memorandum I exclusively wanted to introduce judicial reforms, and my immediate aim was to convince Hitler, and my final aim was to create a corps of judges. I did not want to achieve a political aim with this memorandum.
Q Dr. Rothenberger, I only asked you whether this was a political aim, and in my opinion it is.
A Yes, it is a political aim.
Q All right. Now I want to ask you, did you ever concern yourself with politics or with foreign policy?
A No.
Q You didn't. All right. Thank you very much. I have no further questions in the redirect.
BY JUDGE HARDING:
Q Dr. Rothenberger, when with reference to the time you submitted your memorandum to Albrecht did this speech of Hitler declaring himself the supreme war lord of Germany occur? What is the relationship between the time you submitted your memorandum and his speech?
A The Hitler speech was delivered on the 26th of April. This statement as I already mentioned just now, he had already repeated in his speeches again and again since 1934. When my memorandum reached Hitler's hands, I can not say.
Q When did you submit it to Albrecht?
A I can gather that only from the date which is below the memorandum and that is the 31st of March; in other words, I probably gave the memorandum to Albrecht during the month of April without knowing exactly when it was and also without knowing when Albrecht succeeded in putting it in Hitler's hands. I don't know that.
Q It was submitted to Albrecht before you knew anything about this speech of April 26th.
A Yes, that is certain.
THE PRESIDENT: That appears to conclude the examination at this time, subject to the reserve rights with reference to documents. The witness may be excused for the tine being. You may call your next witness.
(The witness was excused.)
MR. LA FOLLETTE: If Your Honors please, may I address the Tribunal before the next witness appears? Yesterday I submitted to the Tribunal a form of order to show cause in the matter of Dr. Hans Marx and Mrs. Huppertz. The Tribunal took that order under advisement and has not acted. I would like to submit to the Tribunal now a modified form of order for the Tribunal's consideration. I have it all in English and will have the German in here in 15 or 20 minutes. Since the Tribunal will want to read the English copy only, I now send to the desk a form of order. I will submit this to the Tribunal by delivering to the Secretary-General the German translation as soon as it is ready, Your Honors.
THE PRESIDENT: We will give it consideration today. Call your next witness.
DR. WANDSCHNEIDER: May it please the Tribunal, nay I now examine the witness Dr. Lammers. I am calling the witness Dr. Banners on behalf of Dr. Rothenberger's case. Thank you very much.
HANS HEINRICH LAMMERS, a witness, took the stand and testified as follows:
JUDGE HARDING: You will hold up your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE HARDING: You may be seated.
DIRECT EXAMINATION BY DR. WANDSCHNEIDER:
Q Dr. Lammers, please state your personal data; your name and the date of your birth.
A My first name is Hans Heinrich. I was born on the 27th of May 1897 in Luedelbeck.
Q Dr. Lammers, I intend to examine you in the name of the defendant Rothenberger about occurrences which led to the appointment of Dr. Rothenberger as Under-secretary and were connected with his dismissal. The first question I want to address to you is from where you know the defendant. Will you please answer.
A I met the defendant Rothenberger approximately at the beginning of August 1942 at the moment when his appointment as Under-Secretary in the Reich Ministry of Justice was being considered
Q In this trial, the memorandum that Dr. Rothenberger submitted was discussed extensively. Can you say anything about the question whether this memorandum was the reason for the appointment?
A In my opinion, it is without doubt that this memorandum was the reason for which the Fuehrer desired the appointment of Rothenberger into the office of Under-Secretary. I know this for the the following reasons:
Approximately in May 1942, the Fuehrer told me that he had. received a memorandum from a prominent jurist and that he liked it. Without wanting to draw any conclusions from this information, I thereupon asked the Adjutant's office of the Fuehrer, through which the Fuehrer received this memorandum, to show it to me. I then received this memorandum without at first knowing from whom it originated. I only found that out later. When in August 1942, however, the question arose that Rothenberger should be appointed Under-Secretary in the Ministry of Justice, the Fuehrer came back to this memorandum, and this memorandum was the basis that Thierack, who was to be appointed Minister of Justice, was asked that Rothenberger be appointed Under-Secretary in the Ministry of Justice.
Q What was the purpose of the memorandum, in your opinion?
A The memorandum was concerned with the reform of the Administration of Justice. Of what nature this judicial reform was to be, I could no longer remember in the preliminary interrogations which I had about this question. But after the memorandum was submitted to me and I looked through it, I could remember that I had leafed through it, and that it mainly treated the problem of the creation of a high and independent, well-paid, well-situated judgeship and judiciary, and that Rothenberger hoped to achieve most of the judicial reform by this.