However, in the beginning I was used for some individual cases, but later I was no longer consulted.
From a professional point of view, were you in a position to be active in that organization?
A. Since I would have taken such an additional post just as seriously as my main office. I could not have combined tho two at all.
Q. After 1933 did you appear as speaker or author in Party political matters?
A. I neither wrote nor spoke on Party political matters. I only wrote two articles of a professional nature on order of Minister Guertner.
Q. I now start a new subject, and that is your relationship to the Supreme Reich Court and the Reich Ministry of Justice in regard to your activity.
As is known, in addition to the Reich Public Prosecution at the People's Court, there was also the prosecution at the Reich Supreme Court. Did the prosecution at the Reich Supreme Court, after 1936, still have any organizational or other connections with the Reich Public Prosecution at the People's Court?
A. The two authorities were absolutely separate.
Q. At the time when you were Oberreichsanwalt at the People's Court, who was Oberreichsanwalt at the Reich Supreme Court?
A. From 1937 until the collapse, it was Oberreichsanwalt Brettler.
Q. Can you state briefly to the Court what material competence the Reich Public Prosecution at the Reich Supreme Court had?
A. It had to work on the indictments of the Reich Supreme Court in especially important cases. A case of that nature was discussed yesterday by the witness Drescher here, namely, the indictment against Drescher. Furthermore, I had to work on revisions in penal cases, and nullity pleas and extraordinary objections to the extent that they touched upon the competence of the Reich Supreme Court.
Q. Thus it was not the case that only the Reich Public Prosecution at the People's Court had to deal with political matters?
A. The Reich Supreme Court, and with that the Reich Public Prosecution, could also be brought in contact with them; on the basis of review, or by nullity plea, they got in contact with facts, with, for instance, the Party Prohibition Law, the Dynamite Law, and the Radio Law, which usually represented criminal acts with political motives.
Q. If an extraordinary objection had to be raised against a sentence by a special court or a regular court, who was competent to make such a declaration?
A. Only the Oberreichsanwalt at the Reich Supreme Court could do that, and only if he had an instruction from the Reich Government or the Minister of Justice.
THE PRESIDENT: In a moment we will take our afternoon adjournment.
May I inquire of counsel for the defendants who will next be examined after the defendant Lautz, have they submitted the material for their document books to the proper translating authorities? That would be, I presume, the defendant Mettgenberg next, and von Ammon, Joel, and Rothaug.
DR. SCHILF: The next defendant who is to be examined will be Dr. Mettgenberg, on the assumption that a treatment of the Engert case could not proceed in any case.
I have submitted document books for Dr. Mettgenberg. However, I fear that they will not be returned to me in time. As far as the document books for Klemm are concerned, may I perhaps say the following?
I myself have not received any German copies. My secretary and I do not dare any more to inquire at the office, because were are told again and again we cannot urge and we are not allowed to urge. We just have to wait. I am only in a position to submit my documents if I receive the German document books, too. As I have been informed, several document books in the English language have been completed. In the German language however, not yet. However, I am counting upon receiving my document books before I start on the Mettgenberg case. That is to say, that I can introduce the Klemm books before I start on the Mettgenberg case.
THE PRESIDENT: Have you submitted the material for all of the books which you propose to use in the case Mettgenberg?
DR. SCHILF: Yes, I have submitted them, your Honor.
THE PRESIDENT: And when were they submitted?
DR. SCHILF: That was during the last few days. I cannot say it exactly, but only during the last few days.
THE PRESIDENT: Is counsel for Ammon here?
DR. SCHILF: No, Dr. Kubuschok is not present. However, I spoke about the question of his defense of the defendant von Ammon with Dr. Kubuschok today. Following Dr. Mettgenberg's case, he will call von Ammon to the witness box.
THE PRESIDENT. Has he submitted his document material?
DR. SCHILF: Unfortunately I am not informed about that, Your Honor. I can't tell you that.
THE PRESIDENT: Can we be advised as to whether the defendant Joel has submitted his material for documents?
DR. THIELE-FREDERSDORF: Your Honor, the document books for Dr. Joel were submitted on the 16th of July and the subsequent days. The first on the 16th. I have made inquiries in the translation branch and found out that in part the books have been translated and that the problem of completing them is not due to the translation but only to the typing of the document books.
THE PRESIDENT: I think I will not inquire further as to other defendants. But we do call attention to the fact that you have had several months in which the material might be presented. We have been advised by the defense counsel that it would be a great convenience to them to have the document books available when the defendant is examined. You can't do that, gentlemen, unless you submit your document books early enough to have them ready at that time. We cautioned counsel for all of the defendants to submit their material at the earliest moment to the end that they may have the benefit of the document books when they examined the defendants.
We will take a recess until tomorrow morning at ninethirty.
(The Tribunal adjourned until 24 July 1947 at 0930 hrs)
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 24 July 1947, 0930-1630, Justice James T. Brand. presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III.
Military Tribunal III 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: May it please Your honors, all the defendants are present in the courtroom with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert has been excused. Let notation be made.
MR. KING: May it please the Court, the Prosecution has examined the exhibits submitted yesterday in behalf of the defendant Lautz, to the following extent: In Volume I Exhibit 1 through and including Exhibit 35; in Volume II-A, Exhibit 36 through and including Exhibit 82; and in Volume III-A, the Exhibit 83 through and including Exhibit 109. While we have the greatest difficulty in seeing any relevancy whatsoever in nearly all of these one hundred nine exhibits, the Prosecution has no objection to the admission in evidence of the above documents which I have described. In several instances, we do have some questions about the English translations, but we think that is a matter which we can settle outside of court with the aid and abatement of Dr. Grube.
THE PRESIDENT: The exhibits, and each of them, to which counsel has referred are received in evidence, their probative value to be determined by the Tribunal.
DR. KOESSL: (Attorney for Defendant Rothaug) May it please the Tribunal, the President of the District Court of Appeals, Nurnberg, refuses to submit files of the Special Court of Nurnberg to the Defense, inspite of the fact that a written approval has been shown to him.
Neither does he permit any information to be gotten from the files and from the records. He demands of me that I present to him a letter by the Court, directed to him, according to which he is permitted to submit the files to me and is forced to do so. I ask that an appropriate decision be made because for many weeks I have had great difficulties in trying to obtain these files. The President of the District Court of Appeals says that five hundred to six hundred files had been given to the Prosecution. Mr. Einstien says that in addition to the files already submitted, there are only about twenty files left. I was told that upon the steps taken by the defense to try to get the files from the District Court of Appeals, a large number of files had been taken away by the Prosecution.
Difficulties of the same kind exist in connection with bringing witnesses. In order to show the Tribunal that the Defense has attempted everything possible, in order to submit evidence and submit proof on the dates as required, I shall describe the efforts I made to get in touch with the witness Bens. Between the 6th and 14th of June, four petitions were filled, until the witness, who at that time was in the Court Prison, on the 17th of June could be interviewed in the presence of Mr. Einstien. On the basis of his statements the draft of an affidavit was made out, and on the 23rd June the witness was ordered to appear again for an interview; and that interview was for the 26th June because three day's notice was required. On that day permission was given to speak to him on the 27th. On the 27th of June the information was received that Bens had been transferred to Hammelburg on the 21st of June. On the 27th of June I filed a new petition to have him transferred to Nurnberg; on the 9th of July that petition was granted. In order to omit nothing to get possession of the affidavit, which is very important for me, I subsequently on the 10th of July announced that I wanted to make a visit to the camp of Hammelbrug for Friday, the 18th of July.
On the 18 of July I sent my assistant to the camp of Hammelburg. Bens had been released on the 17th of July. At this time telegrams are on the way to get in touch with that witness.
The witness Martin was requested by me on the 6th of June. The witness at that time was also in the prison here. Due to the introduction of special forms, I received my petition back on the 10th of June. On the 10th of June the right forms were made out by me. On the 12th of June I received information that Martin had been transferred to Dachau. Since that time I sent my assistant twice to Dachau, and in this case I was successful in obtaining the affidavit.
On the 27th of June the witnesses Voigt, Ohler and Zimmermann were requested. All three of them were approved on the 7th of July. Until this day not one of them has arrived, and I really don't know what these witnesses can testify to.
A a consequence of these circumstances, the seventeen days granted to prepare the Defense could not be utilized fully. I submit these facts to the Tribunal so that the Tribunal shall see that the Defense has done everything in its power in order to be able to meet the deadline.
THE PRESIDENT: Counsel should be prepared to present his Defense in the regular order, when and as we reach it. The Tribunal is not aware of any order or form of order which has been presented to the Tribunal which has not received prompt action. If there be a delay, it is not on the part of the Tribunal. When the transcript of your comments, Dr. Koessl, is in the record, we will cause the facts to be inquired into and determine what should be done. You have secured your affidavit from Bens, have you not?
DR. KOESSL: No, no. From Bens, on the basis of the interview with him, I drafted an affidavit, but I could not obtain his signature because -
THE PRESIDENT: Where was he then?
DR. KOESSL: Bens was here in the Court Prison, and in the presence of Mr. Einstein I interviewed him.
THE PRESIDENT: If you want Bens as a witness, and if he is available here, he can be called as a witness to the witness stand; that will obviate the necessity for an affidavit.
DR. KOESSL: Mr. President, I have just explained that Bens was transferred from here. He was sent to the camp of Hammelburg, and when I tried to get in touch with him there, he had been released the previous day.
THE PRESIDENT: The Tribunal will cause some investigation to be made concerning the facts as you allege them. If counsel desires that an order be issued to the President of the District Court of Appeals, Nurnberg, he should prepare a written request for such an order, specifying the name of the office and what it is that you desire to be incorporated in such an order, and the Court will five it consideration.
DR. KOESSL: I shall immediately prepare the motion in writing.
DR. GRUBE: May it please the Tribunal, I ask to be permitted to continue the direct examination of the witness Lautz.
THE PRESIDENT: Proceed.
ERNST LAUTZ - Resumed BY DR. GRUBE: (Attorney for the Defendant Lautz)
Q Yesterday at the end of the day we had come to the question as to who was competent if against a sentence of a special court, or a regular court, an extraordinary objection was made, and you said the Reich Prosecutor of the Supreme Court. May I ask you what court made the final decision in this case?
A The special senate at the Reich Supreme Court was competent for the decision in this case.
Q Yesterday by submitting Exhibit 23, I demonstrated that the mullity plea could be filed via the Chief Reich Prosecutor at the Reich Supreme Court against sentences of the local courts, the penal chambers ant the special courts.
I want to ask you briefly, in the course of the war, was that provision extended to the effect that the nullity plea could also be filed against sentences of the People's Court?
A No, that did not happen.
Q You yourself, therefore, had nothing at all to do with the nullity plea?
A No.
Q Concerning the subject of the nullity plea, the Prosecution submitted various documents. Those are the exhibits of the Prosecution Nos. 179, and 188. And the, further documents which also refer to the nullity plea are exhibits of the Prosecution 186, 191, 245, 489, and 261. Can I assume, therefore, that these documents do not refer to to you?
A No, they do not.
Q The Prosecution also submitted documents in which mention is made of the Chief Reich Prosecutor. Those are the exhibits 63, 59, 96, 165, 434, 457, and 560. Do these exhibits refer to you?
A No, they do not refer to me either.
Q In this connection, at this time, I should like to put another question. The Prosecution, in its Indictment, stated that you were co-resonsible for matters which, according to the text of the Indictment, were exclusively designated as matters of the Ministry of Justice. They are the following points of the Indictment: Arabic figures 12 and 24; 14 and 26; 15 and 27; and 18 and 30. Because of these statements I ask you: Were you ever a member of the Reich Minister of Justice?
A No.
Q Did you ever participate in the drafting of the measures with which the Ministry of Justice is charged under these points?
A No.
Q Under figures 15 and 27 of the Indictment, the Prosecution stated that the RJM--that is, the Reich Ministry of Justice--had taken a part in the extermination of certain groups of individuals by the aid of legislation for sterilization. In addition to that, the mentally sick, as well as the old and sick inhabitants of occupied territories--as the so called "useless eaters"-- were murdered.
In reference to this point the Prosecution submitted numerous documents, above all, the documents in document book VIII-A, bearing the exhibit numbers of the Prosecution 383 to 401. Under figures 15 and 27 of the Indictment, you, among other persons, are also charged with special responsibility for and participation in these crimes. Would you please comment on that?
A In answer to this I can only say that I never had anything to do with questions of sterilization and euthanasia, and that officially I could not have had any connection with these matters because they had nothing to do with the special competence of my office. The decree of the Reich Minister of Justice of 22 April 1941---that is document NG-265, Exhibit 392--was submitted to my office only for the purpose of information, for my attention. At first I did not understand its meaning: therefore, I inquired at the Ministry of Justice as to what the meaning was. I was told that according to the knowledge in the possession of the Ministry of Justice, apparently things had been going on in mental institutions which were not in order. The Ministry of Justice therefore placed great emphasis on the fact that they wanted to know from all offices of the Administration of Justice whether, within their sphere, any observations had been made, the knowledge of which was essential for the Ministry of Justice. As for my office, no such observations were made there.
DR. GRUBE: The witness has just stated that such measures did not at all come under the competence of the Reich Prosecution. In this connection, may I refer to the following exhibits which I introduced yesterday: 23, 32, 33, 39, 40, and 41.
Q Witness, under figures 18 and 30 of the Indictment, the Prosecution stated that the Ministry of Justice, by suspending the Prosecution stated that the Ministry of Justice, by suspending and quashing penal procedures, had contributed to Hitler's program to incite the German civilian population to the killing of Allied fliers who had been forced down within the area of the Reich.
The Prosecution, for that purpose, submitted the following documents: Exhibit 108, 109, 110, 417, and 440. In reference to this point, under figures 18 and 30 of the Indictment, the Prosecution stated that, among other individuals, you also are charged with special responsibility for and participation in these crimes. Therefore, I ask you to comment on this.
A I never have understood upon what foundation the Prosecution based this statement. I was never a member of the Ministry of Justice; I could never have participated in penal provisions which would have had for their subject the killing of Allied fliers. Therefore, I was not in position and could not have come into a position to have an influence on the suspension or quashing of any such penal provisions.
Q Witness, would you please comment on document NG-412, which is Exhibit 77 of the Prosecution.
A What document are you referring to?
QNG-412, Exhibit 77. It refers to a case of treason committed by a German in the Memel District.
A The document reveals that the Chief of the Legislative Department of the Ministry of Justice, and his Referent, wanted to know, based on my practical experience--they were preparing a certain draft for a law--whether any experience existed on which the draft could be based; that is to say, whether certain cases had occurred with the Reich Prosecution. As far as I am able to remember, my answer was to the effect that there was only one single case pending at that time, where it had been learned afterwards that before 1933 an extraordinarily serious case of treason had occurred on the part of a German in that district which, according to the prevailing opinion of its punishability, could not be sufficiently punished according to the opinion which had prevailed before. However, I could not tell at that time whether or not there would be any more proceedings of that kind in the future.
Q Witness, that information to the Ministry of Justice was not offered by you on your own initiative, but it was given upon an inquiry made by the Ministry!
A This is the way it happened. That question was not only of importance to the regular Administration of Justice, but, to a much further extent, to the justice departments of the Armed Forces, because during the war treason and espionage were, first of all, dealt with by the Reich Military Court. The Reich Military Court and High Command of the Armed Forces--that is to say, the Legal Department-and the Ministry of Justice, discussed this question and both, the Legal Department of the Armed Forces, as well as the Ministry of Justice, in order to come to a final decision, inquired about the front experiences, if I may say so.
Q Witness, will you then please refer to the document submitted by the Prosecution under NG 548, Exhibit 347. This document is a letter to the Reich Minister of Justice of the 23rd of February, 1942, which contains excerpts from a letter by Himmler of the 13th December 1941.
A That report was necessary because in an individual case or in several individual cases a decision had to be obtained from the Minister of Justice as the whether a penal prosecution should be initiated for an act committed abroad for proceedings of that kind could only be initiated after the Minister of Justice had given his approval. As can be soon from the letter, its essence is a letter from the RSHA which shows that the RSHA did not agree with the opinion of the Reich Prosecution and the People's Court as to these proceedings. For that reason also it was necessary to obtain a decision on the part of the Minister of Justice. At the end of that report the two procedures are described by me briefly, which were the main problems in this case. If one takes notice of the facts such as they are described there, I do not believe that any fair minded person could have any objection to the fact that these circumstances words made the basis for criminal proceedings but according to the nature of these cases only a German Court could have tried them.
Q The Prosecution also submitted a situation report of the 19 of February 1944. That is document NG 671, Exhibit 220.
THE PRESIDENT: As I said before you will accommodate us if you will give the exhibit number first.
BY DR. GRUBE:
Q In paragraph E of that Exhibit 220, you stated in connection with the subject "Treason by Neglect' the following, and I quote:
"Considering the serious danger to the conduct of the war which arises particularly from the violation of the duty to secrecy within the meaning of paragraphs 90-D and 90-E of the Penal Code, it is necessary that the existing threats of punishment be considered not sufficient." Will you please comment on that?
A The reference made to those two penal provisions is really a reference to the great difference existing between an accomplished fact of treason and the so-called treason by neglect. (Fahrlaessig). Both provisions presuppose that a person has betrayed a secret of the state to another individual. The difference, however, between a true case of treason and a case of treason by neglect lies in the following: In the first case the betrayer intends that the secret should come to the knowledge of the enemy; in the second case he has no such intention. Those differences are expressed considerably in the measure of punishment. True treason has to be punished by death. Treason by neglect can only be punished by a prison term of at most twelve years. To distinguish between these two cases in practice is extremely difficult because it is very difficult to look inside a person, and we were convinced that the Courts in many cases would have decided in favor of the milder provision concerning treason if the punishment threat would have been more severe. There occurred a particularly tragic case which gave cause to make that suggestion on my part. The facts were the following briefly: An armament plant in Germany which dealt with the production of a now weapon hitherto unknown had been destroyed to a great extent by the British Air Force.
To assure that the engineers and workers of that factory did not remain unemployed, they were put into another industrial plant somewhere else in Germany. One of the engineers in a hotel on the occasion of a dinner party met several inhabitants of the city where he now worked and since that city had also been seriously damaged by air attacks and the morale of the population was very low, he permitted himself to say following at the dinner table: One need not worry. In the future things would improve because what he know, would guarantee that the war would change for the better. But he did not leave it at that but in a quite unambiguous way described the weapon that he had helped manufacture. In this case the Chief of the Reich Prosecution had filed an indictment for charges of treason by neglect. The first senate of the People's Court on account of the intention of actual treason sentence the man to death and explained that case of treason was so serious in its consequences that the culprit would have had to expect that by an indiscretion his information might have come into the possession of tho enemy. And the department did not succeed by suggesting clemency in preventing tho execution of that sentence. I was convinced that tho first senate, if it could have decided for a penitentiary term, would have done so. Therefore, that suggestion was made.
Q After you have discussed these questions and explained what you had to do with the Reich Supreme Court and the Ministry of Justice, I shall revert now to your position as Chief Reich Prosecutor with the People's Court. Until 1944 you were Chief Reich Prosecutor of the People's Court, weren't you?
A Yes, until the surrender.
Q In that capacity you were in charge of the office of the Chief Reich Prosecution with the People's Court, werent you?
A Yes.
Q What kind of an office in the administration of justice, was that Chief Reich Prosecution with the People's Court?
A The position of Chief Reich Prosecution was about the same as the Prosecution with the District Courts. It differed from those, only, however, in that the Chief Reich Prosecution was immediately subordinate to the Ministry of Justice, and that it's officials in view of their tasks were better paid.
Q And are the same conditions true about the Chief Prosecutor of the Reich Supreme Court?
A Yes, that is true.
Q Could you briefly describe the development of the Chief Reich Prosecution, particularly from what kind of an office it evolved?
A The Chief Reich Prosecution as far as its personnel was concerned developed from the Chief Reich Prosecution of the Supreme Court. When the People's Court was established in 1934 a branch of the Chief Reich Prosecution with the Reich Supreme Court was transferred to Berlin. It was subordinate to a special Reich Prosecutor, who at that time was still subordinate to the Chief Reich Prosecutor at Leipzig. That was changed in 1936 when the People's Court was put on the budget and was granted a Reich Prosecution office of its own. Its Chief was no longer subordinate to the Chief Reich Prosecutor in Leipzig but to the Minister of Justice and from 1937 on he also had the title of Chief Reich Prosecutor.
Q In this connection, may I refer to the Exhibits 19, 20 and 21 which I have submitted. Witness, what was the structure of the Reich Prosecution to the People's Court when you were Chief Reich Prosecutor there?
A It was sub-divided into departments. At first there were four, later there were seven. At the top of each division there was a Reich Prosecutor or a Chief Prosecutor. Each department, in order to take care of its routine tasks had one or two offices and the necessary office personnel.
Q In order to give an impression of the size of that office, could you tell us something about the number of personnel and the Judges between 1939 and 1945?
A I believe that I can only say for the appointment of higher officials, that is to say, the officials of the rank of Prosecutor, when I took over that office, it was in September 1939, there were about 35.
Q One moment, witness, 35, you mean Prosecutors?
A Yes, Prosecutors or Judges who were used at that time as Prosecutors, but in this connection I have to say that already the mobilization order had withdrawn several individuals from that office. Toward the end of the war there were about 17 public prosecutors or judges in the function of prosecutors. The constant change which occurred during the war by induction into the armed forces of officials meant that frequently people who were not fully qualified had to be used.
Q Would you now quite generally describe your activities as Chief Reich Prosecutor?
A The Chief Reich Prosecutor, that is the Chief of Office, had as his main task to supervise everything, to see to it that tho laws or directives of the Minister were abided by and for that purpose it was his task to sign the indictments, to sign directives by which any proceedings might have been suspended, and the most important reports to the Minister of Justice.
As far as the Chief Reich Prose cutor could not do that himself in individual cases, his permanent deputy, or if he was not present, the senior Reich Prosecutor had to sign for him. I myself in the course of the war frequently had to be represented by someone else if I was away on an official trip, sick or on leave. For a considerable time I had to be represented by a deputy, when in the fall of 1944 I was kept busy exclusively by matters pertaining to the attempt of the 20th of July. In this connection I would like to say the following: In November 1943, by an Allied air raid on Berlin, the people's Court was destroyed greatly. Three departments had to be transferred to Potsdam and throe senates. As for the departments in Potsdam Reich Prosecutor Weyersberg deputised for me because it was impossible for me to go to Potsdam every day in order to take care of matters there also.
Q Witness, were the Chief Reich Prosecution on the one hand and the People's Court on the other quite independent legally and as to organization?
A Yes.
Q Was the office of the Reich Prosecution at the People's Court subordinate to the People's Court?
A You mean to the President of the People's Court?
Q Yes, to the President?
A That was not the case, but as long as Thierack was President of the People's Court, he frequently tried to obtain influence on the Reich Prosecution.
The Prosecution here submitted a document a from which that can be seen. It is Exhibit 437, document NG 919. In this connection may I say the following: According to legal provisions, which my defense counsel has submitted here in evidence, the Chief Reich Prosecutor was authorized concerning a certain number of offenses he had to deal with, to request that the cases be transferred to the District Courts of Appeals, if he considered these cases to be of minor importance. Of this authorization I made use always as far as it was possible. When Thierack was President of the First Senate, he frequently was indignant that by this manner cases were withdrawn from his influence, it was known to me that he made efforts that these transfers, to which the Chief Reich Prosecutor was authorized, should depend upon the approval either of a President or a senate. He thought that the opportunity had coma to obtain that when the Ministry under Schlegelberger in 1942 wanted to extend further that authority granted to the Chief Reich Prosecutor. The draft for the law was dropped later, apparently because Thierack pulled wires against it rather strongly.
Q You just mentioned your practice in transferring cases to the District Courts of Appeals; was the procedure of transfers of cases supervised by anybody?
A It was not supervised or checked but from reports submitted to him the Minister of Justice found out about it and repeatedly, particularly during Thierack's time, interfered.
Q The Prosecution has submitted various documents concerning the appointment of Lay Judges for the People's Court. Did you have any influence on those appointments?