Since that matter was important, of course, it was reported to the minister himself, and that happened on the 1st of July 1943. On the occasion of that report it became evident that the minister was not at all against it, to return the competency of the NN cases again. At first he did not share the misgivings which we in department IV had, and that he did not share them can be understood if one knows his point of view which was not at all against it, to let the police carry out penal measures of all sorts. I have to refer to that matter later. At any rate we only succeeded with Minister Thierack to persuade him also to refuse that suggestion after we told him that if that were done one would have to expect reprisals from abroad. That point of view had a certain impression on him and he decided to share our opinion in order to avoid such measures of reprisals from the other side. Therefore, we received an order which was quite welcome for us to toll the High Command of the Armed Forces that we opposed that suggestion and that also was expressed in a conversation with the High Command of the Armed Forces which took place a short time later. In fact, nothing happened in this matter but one day at the end of August or the beginning of September, 1944, the High Command of the Armed Forces sent an invitation to a conference to request the various departments to send representatives into the offices of the High Command. The topic for discussion was a now Fuehrer Order, a Fuehrer Order which had been issued after the invasion by the British and American troops, and which was to the effect that court proceedings should no longer be carried out in the occupied territories against the inhabitants of these territories, but the culprits should be turned over to the police for use as man power.
That Fuehrer Order was attached to the invitation, as well as a decree by the High Command of the Armed Forces, that also provided that NN prisoners who had already been sentenced should be turned over to the police. Upon this invitation Dr. von Ammon went for the Reich Ministry for Department IV, that is, the pending NN cases, and the witness Hecker, who is also know to this Tribunal, for department V, that is for NN penal prisoners. There was no opportunity before the meeting with the High Command to obtain the decision of our Minister. Consequently, Dr. von Ammon was charged with the mission to state in this meeting that he was there only for the purpose of obtaining information. He had to report on the results of the meeting to the minister and to reserve the rights for a decision in that matter on his part. Then after the meeting when Dr. Von Ammon had returned to the Reich Ministry of Justice he told me of that result and said at the same time that the matter was going to lead to it that the High Command would submit a new draft summarizing the results of the conference, and then there would be an opportunity for the Reich Ministry of Justice to state it's position and make a decision. So we waited for that new draft but it did not come. In it's place sometime later there came a decree signed officially which to our greatest surprise ordered that all NN cases were to be turned over to the police. We had to discontinue our proceeding and turn the prisoners over to the police and that which surprised us the most was the fact that the introduction of that decree rend "in agreement with the Reich Minister of Justice," an agreement which had not been brought about on our part.
By that document we immediately reported to our department chief Vollmer. Vollmer probably had an opportunity before to speak to the Minister and therefore was of the opinion that since the ministry really competent in this case, that is, the High Command of the Armed Forces had decided to turn the prisoners over to the police, we in the Ministry of Justice could not raise any objection to that. We would have to accept that because according to the legal situation and again I have to remind you of article III, Section II which I have mentioned before, the Armed Forces is at any time in a position to renounce the practice hitherto established of turning over all NN cases to the civilian administration of justice. Then we had no alternative than to carry out what we were requested to do. Therefore as far as Department IV was concerned, the pending NN cases, and Department V, where NN cases which already had been sentecned were dealt with, the necessary preparations were made to turn those matters over to the police. However, only in part this matter was really carried out. We have heard frequently that NN prisoners, when the collapse occurred, in large numbers were still in the prisons of the administration of justice. At any rate, now the responsibility for the NN cases which we had to return, was also returned into the hands of the OKW.
Q: Dr. Mettgenberg, now after in great detail you have discussed the handling of these matters, would you please discuss a few matters which are of importance for the period of time while the Ministry of Justice handled the NN cases.
First the question, from what time on were the NN cases transferred by the ordinary courts to the Armed Forces?
A: As far as I am informed that must have been in the late summer of 1943. At any rate I was able to find out that the first NN trial took place at the end of 1943.
Court No. III, Case No. 3.
Q How was it about the provisions for secrecy in the field of the Administration of Justice? In principle you have already referred to the concept of military interests, and I ask you now to tell the Tribunal briefly how that duty for secrecy actually worked out.
A Quite generally, that duty for maintaining secrecy is provided by the Fuehrer decree of 7 December 1942. It was unavoidable, however, that in the course of time, again and again, questions would arise which had to be answered concerning the carrying out of these provisions for secrecy. We always had the tendency to reduce the provisions for secrecy to the minimum which was absolutely required.
From all these individual discussions a regulation finally evolved which summarized the original provisions; that is the circular decree of 6 March 1943, Exhibit 319. No less than four departments contributed to the draft of that circular decree: Departments II, IV, V, and VI. And if one counts the initials and signatures under that decree, one finds altogether not less than 15 high officials of the Ministry who signed it. I believe that shows with what extreme care that matter had been examined. The final signature on this decree is that of Ministerial Director Vollmer. I do not think I have to repeat its contents.
Q That is Exhibit 319, and it contains all the provisions.
One further question. What substantial penal law was the basis for the decisions of the Courts in such NN cases?
A That question can easily be answered. It was the same law which have been applied if these penal cases had been tried, according to Paragraph 161 of the Military Penal Code, by the military courts in the occupied territories. That is to say, then, in these NN cases, these same legal provisions against espionage, bands, partisan activities, prohibited possession of firearms, and so on, were applied.
JUDGE HARDING: What were the other two?
THE WITNESS: Espionage, and banding together. That is the same as partisans.
Court No. III, Case No. 3.
JUDGE HARDING: What were the others?
THE WITNESS: Forbidden possession of firearms. Those were the three I mentioned.
JUDGE HARDING: Aren't there two more?
THE WITNESS: I only mentioned three.
I do not believe, from the point of view of international law, that any objection can be raised through that legal application.
DR. SCHILF: That was the substantial law. Now, may I say to the Tribunal that I shall also submit these provisions concerning substantial law in my document book.
BY DR. SCHILF:
Q Now I want to ask you as to the legal basis for the procedure in these NN cases.
AAs to these provisions, in principle the same provisions applied which were also applicable, according to the Code of Criminal Procedure, to Germans. Deviations of these provisions only occurred due to the obligation to maintain secrecy. As far as deviations were ordered, they can be understood from that point of view, and they are understandable.
Q These two circular decrees which are decisive for the evaluation of that question--that is to say, of 6 February 1942, and 28 October 1942--did they contain important provisions which represent a deviation of the existing law of procedure in Germany?
A Yes; those are the differences which result from the duty to maintain secrecy.
Q Now I should like to ask you this. In the provisions referred to, matters are also mentioned which concern means of evidence, that is, witnesses, documents, and so on. How was that matter of means of evidence connected with that duty to maintain secrecy?
A That restriction, for instance, that means of evidence could not be brought in from abroad, is expressed in paragraph 75 of the carrying out decree and under paragraph 4 of the circular decree of 6 February Court No. III, Case No. 3.1942.
The authorities of the armed forces in the occupied territories had been ordered at first to carry out investigations in the occupied territories and only to turn over these cases if it was clear that the circumstances were not in favor of the defendant.
The witness Lehmann has discussed that, and it can also be seen from the Canaris document--I don't have the exhibit number.
DR. SCHILF: That so-called Canaris document will be in my document books.
THE PRESIDENT: In that connection, Dr. Schilf, there have been many references not only to the Keitel document on NN but also to the original Fuehrer Decree of 7 December 1941. It is my recollection, and I may be in error, that that decree is not in evidence as a document, though we have had some reference to it. Can that be clarified for us?
DR. SCHILF: Mr. President, I believe that that so-called Fuehrer Decree was submitted as Exhibit 305, Exhibit 305 is a part of the so-called Fuehrer Decree.
THE PRESIDENT: But that is the letter by Keitel, according to my notes. I am seeking the original order signed by Hitler himself, if you can help me.
DR. SCHILF: Mr. President, that does not exist at all. Hitler did not sign a decree in the case; Hitler ordered Keitel to do so, and only the name and signature of Keitel is under it. That can be seen from Exhibit 305 and Exhibit 303.
In addition, may I say that Exhibit 303 has a signature and it states "in Auftrag", that is to say "on order of Hitler", signed by Keitel, if I remember correctly.
THE PRESIDENT: You have no document showing the original order that Hitler made?
DR. SCHILF: There is no signature of Hitler, there is only the signature of Keitel. Therefore, there is no original which could be designated a Fuehrerlass, that is, a Fuehrer decree, or a decree by Hitler. But Keitel, in this letter which he signed, referred to Hitler Court No. III, Case No. 3.and said:
"It is the intention of the Fuehrer...." And then he sets forth what the intention of the Fuehrer was. However, the Fuehrer doesn't say it himself, it was signed by Keitel.
THE PRESIDENT: Perhaps this may help us out. That Keitel letter is not the first occasion on which the phrase "night and fog" was used, as I recall the testimony. Have you any document which shows when Hitler first used that phrase which was adopted in the Keitel papers?
DR. SCHILF: Mr. President, that expression, "night and fog" does not come from Hitler. In the first document--that is, of 12 December 1941-Keitel says what was supposed to be Hitler's opinion, and mention is made of the fact that the population should be kept ignorant of the fate of these culprits. Because of that remark, the other offices called it the "Keitel Decree", or "Fuehrer Decree", or "Night and Fog Decree." The official designation "Night and Fog Decree" does not exist. Later, in various documents, in order to agree on one expression, on principle this decree was called "Night and Fog Decree"; officially, however, this designation cannot be found.
THE PRESIDENT: I think we have indicated our interest, which I am sure one side or the other of the case will enlighten us on, if there is any light that can be obtained.
It is now time for us to recess until tomorrow morning at 9:30.
(At 1630 hours, 31 July 1947, a recess was taken until 0930 hours, 1 August 1947.)
Official Transcript of American Military Tribunal 111 in the matter of the United States of America, against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 1 August 1947. The Honorable 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: 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 the proper notation be made.
You may proceed Dr. Schilf.
WOLFGANG METTGENBERG (Resumed) DIRECT EXAMINATION
BY DR. SCHILF:
Q. May it please the Court, it is necessary to correct the transcript. The witness yesterday stated a date which requires correction. The point is the date when for the first time the courts inside Germany dealt with NN-matters. The witness Mettgenberg said that the year for that was 1943. Herr Mettgenberg will you please yourself correct that date?
A. I stated that in the late summer of 1943 for the first time NN-case were taken over by the Administration of Justice and that the first trials took place at the end of August, 1943; that statement must be correct to the effect that that occured in the year of 1942.
Q. I would like now to draw the attention of the Tribunal again to the question which the Presiding Judge put yesterday as to whether an exhibit was not missing in submitting evidence on the part of the defense, that is to say as to whether the Fuehrer decree as such was not missing.
I already point out that Exhibit 303, that Fuehrer decree, does represent the Fuehrer decree, however on this there does not appear the signature of Hitler, but that of Keitel. But the heading of that decree shows that it is a Fuehrer decree, the heading of Exhibit 303 says: "The Fuehrer and Commander in Chief of the Wehrmacht, signed on instructions, Keitel." To make it altogether comprehensible, I want to point out that Exhibit 305 is a letter from Keitel and a distribution list is attached to Exhibit 305. In that decree of 12 December it says that, in reference to the offices and officials enumerated in the list, this Fuehrer decree is handed to them. The introductory mark is "one enclosure" and that enclosure, which in the document book appears as Exhibit 303, is the enclosure to Exhibit 305, the last paragraph of Exhibit 305, it says, "The attached directives for the procedure, etc., are in accord with the views of the Fuehrer. The directives were examined and approved by him." That is to say within the technical meaning of the law these directives of 7 December 1941 were regarded as a Fuehrer decree.
THE PRESIDENT: Dr. Schilf, it was not my intention to indicate the insufficiency of the exhibits, which are here at all. I was simply seeing if there was any earlier documentary matter to suggest it and be presented to us. That is all.
BY DR. SCHILF:
Q. Dr. Mettgenberg, I can now continue with the examination. Yesterday evening we stopped at the question as to what laws or procedure were applied in the cases of the so-called NN-prisoners when they were sentenced by German courts inside Germany. The last question we discussed was that of evidence, may I ask you to continue your comments?
A. Yesterday in that connection I referred to the testimony by the witness Schlegelberger, who in the witness stand stated that the limitations which resulted for the proceedings on account of evidence from abroad could only work in favor of the defendant. Even though investigations were first of all carried out in the occupied territories before the NN-prisoners were transferred to Germany, yet it was a matter of course that that evidence was not always without gaps.
Difficulties which arose from the fact that the evidence had gaps are evident from Exhibit 334. That exhibit is a report by the General Public Prosecutor at Kattowice to the Reich Ministry of Justice which deals with such difficulties. In this connection, I would also like to point out especially the existence of Exhibit 335, which shows that occasionally we were confronted with rather dubious police transcripts and that when we had been informed that such police records occasionally had been obtained by inadmissible means, Dr. von Ammon, during his official trip to Upper Silesia, had an apportunity to discuss this matter with the chief judge for Belgium and Northern France, Dr. Schikaski. It was gratifying that in the course of that conversation, it was found that Dr. Shikaski like Dr. von Ammon and myself considered it necessary to remedy that sate of affairs. Once again a point had arisen which showed that we of the Reich Ministry of Justice were in complete agreement with the men from the High Command of the Armed Forces to the effect that the NN proceedings in all their phases had to be carried out in an orderly and unexceptional manner. That view was shown also in other work and cooperation with the legal department of the Armed Forces once again.
Q. Dr. Mettgenberg, in this connection you have mentioned the legal department of the Armed Forces, as far as you can remember who were the men at the High Command of the Armed Forces with whom you dealt?
A. I personally was in particularly close contact with Dr. Lehmann, who has appeared here as a witness. That was due simply to the fact that for a long time we had worked together at the Reich Ministry of Justice before he was transferred to the High Command of the Armed forces. When he took over the Legal Department of the High Command, our friendly cooperation continued with Ministry Councillor Huelle too, the man who was official referent for NN-matters at the High Command. That is to say that he was the Command filled the task that with us was filled by Dr. von Ammon. With Huelle too, Von Ammon and I had friendly relationship.
Q. May I draw the attention of the Tribunal to the chart, half of which appears here. That is the chart which the prosecution introduced and there on that sheet there was the name of Dr. Lehmann, -- name is no longer there. He was shown as the liaison officer with Department IV, and Mettgenberg and von Ammon as far as NN-Cases were concerned. Dr. Lehmann, whose name appeared here, has since been here as a witness. May I say that the men whom the witness Mettgenberg has just mentioned were not prosecuted and that all those men are at liberty.
Dr. Mettgenberg, the next point which we have to discuss is the question of the defense; in that respect too a number of documents have been submitted.
A In this connection may I refer to Exhibits 314 and 317. Those two documents reveal that two measures have be be discussed here. The first measure is the limitation in the choice of defense counsel, that is to say the limitation of a privilege of the defendant to choose a defense counsel for himself. That limitation is laid down in the circular decree of 21 December, 1942. That that limitation had to be made is obvious on account of secrecy which was made mandatory for NN matters. The free selection of defense counsel could be allowed for obvious reasons only in exceptional cases. The circular decree which settles this matter was drafted by Departments III and IV. For Department III the witness Suchomel and for Department IV I, deputizing for the chief of the department, signed it. The second measure concerns the cases of necessary defense. There, too, a limitation occured which approximately in March, 1942 was decreed and which evidently was decreed by Minister Thierack himself. The ruling was that in all serious cases a defense counsel had to be appointed. In all cases where the defendant was sentenced by the People's Court, in all cases where there was a threat that the death sentence might be passed, a defense counsel had to be appointed. In other cases, that is to say in lighter cases, it was left to the discretion of the presiding judge to make a decision as to whether a defense counsel was necessary or not. The reason for this limitation was not the secrecy, but the lack of a sufficient number of defense counsel, which was due to war time conditions. That the lack of a defense counsel in German proceedings is quite a different thing that it would be in American proceedings, had become quite obvious here, and I do not believe it is necessary for me to comment on that.
Q Dr. Mettgenberg, did you know of a case where an NN prisoner did not have a defense counsel in a trial before the People's Court?
A I did not hear of any such case, and I must regard that as being quite out of the question because it would be against the regulations.
Q Dr. Mettgenberg, my next question refers to the law of procedure, and it is discussed in Exhibit 313. We are here concerned with the way in which the court was committed to comply with the application by the public prosecutor. Would you comment on this and would you tell the court about possible changes in this.
A I believe that I shall be able to be very brief, because the witness Dr. Schlegelberger has spoken about these matters at length. I am referring to the explanation of Figure No. 6 of the executory order of 6 February, 1942. That circular decree, as Dr. Sclegelberger stated, was distorted by Freisler. He, Dr. Sclegelberger, in his testimony clarified matters. He stated clearly that and why this ruling had been made. I should only be able to repact that, and I do not think that is necessary.
Q Did Minister Thierack, after he assumed office, make any changes in that matter; or, in other respects concerning NN matters?
A Dr. Thierack, after he assumed office, very soon had a special report made to him about NN matters. The reports were made to him by the Departments III and IV. He dissaproved of the previous rulings on two points. The first point referred to the fact that the People's Court was not competent for NN matters. According to the previous ruling NN cases were dealt with exclusively by certain special courts. Even the most serious cases came before those special courts, and not before the People's Court which would really have been competent for these matters. Dr. Thierack himself was of the opinion that that arrangement had been made to exclude him -- Dr. Thierack who was then president of the People's Court. Therefore, he attached all the greater importance to the fact that now that he had assumed office as minister, that diregard for the People's Court -- that was how he locked at the matter -- should come to an end, and that the People's Court should be competent in NN cases too, for such matters for which the competence of the People's Court in itself was indicated.
The second point of which Minister Thierack did not approve was the ruling that the Administration of Justice had the custody over the NN prisoners. He disapproved of the very point which has just been discussed -that the public prosecutor in certain circumstances by an application that the proceedings were to be suspended might be able to see to it that we were able to keep the NN prisoners in our custody. Minister Thierack wished proceedings to be concluded in the normal way, and that the NN prisoners, in case of their acquittal or in case they had finished serving their punishment, were to be returned to the police which had originally transferred them to us. On account of instructions for the Minister, Department III, which was placed in charge of these matters, on 14 October, 1942 worked out a corresponding basic circular decree. The Minister requested the chief of the department, on account of this change to contact the RSHA and the High Command of the Armed Forces and the RSHA to negotiate with them. Dr. Krohne carried cut that mission and found out that both authorities agreed to the change . Consequently, a conference was called at the Reich Ministry of Justice, at which Dr. Krohne announced the changes which had been ordered by Thierack and at which a discussion of the changes was held. The changes which were made were announced in a circular decree of 28 October, 1942.
Q May it please the Court, the circular decree to which the witness has referred is dated 28 October, 1942, and is Exhibit 313Dr. Mettgenberg, we have now concluded our discussion of the questions concerning the code of procedure. You have spoken of the deviations which were the result of secrecy and you have explained them exhaustively. Now, I must ask you this. The police are mentioned frequently in the documents.
Did you have difficulties with the police over these NN cases?
A Yes. In NN cases too, we had difficulties with the police. It would have been astonishing if in that special sphere we had not had the difficulties which we encountered in our contacts with the police otherwise. In NN matters the police, toward us, took up the view that when the prisoners had been transferred to Germany, according to the will of Hitler, the question that punishment as such should be imposed had been settled. That means to say that the transfer to Germany actually only was intended to take the NN prisoners into police custody, and to leave them in police custody; that legal proceedings were carried out against NN prisoners was contradictory to that basic attitude of the police.
Our attitude as I have emphasized repeatedly, was exactly the opposite. We considered it as an advantage for the NN prisoners if we kept them in custody as long as possible, we, the administration of justice, but if one casts a glance at Exhibit 310 one sees clearly how the police wanted these matters treated. There is says in a decree to the police authorities, and I shall now have to quote:
"In case the NN prisoners be brought before a special court, they should be taken into a concentration camp." As to what the police were thinking when they said "in case they cannot be brought before a special court," that I do not know even now, but at any rate I think one can conclude from that that the police department did not transfer all NN prisoners to the administration of justice. That conclusion would corroborate what we supposed at the time and it would also corroborate the information we imparted to the High Command of the Armed Forces. Those assumptions of which I am talking can be seen in Exhibit 381. At that time Dr. von Ammon, after he had discussed the matter with me, tried to get the High Command of the Armed Forces to lock into things , and to find out whether actually the police was keeping the NN prisoners in their custody and if so that the high Command of the Armed Forces was to remedy that state of affairs. What is characteristic in this contact is also Exhibit 324, which contains a longhty report by the police, which shows what the police were hoping of a new regulation for NN matters in the Netherlands.
THE PRESIDENT: May I ask question before you leave that point? Dr. Mettgenberg, I didn't understand as you stated it, what document you were quoting from when you read these words: "If the NN prisoners cannot be taken to a special court, they shall be taken to a concentration camp." What document was that from please?
WITNESS: Your Honor, that is Exhibit 310.
BY DR. SCHILF:
Q Dr. Mettgenberg, this document, Exhibit 310, that refers to an internal occurence among the police officials, did you know of that when you were in office?
A No, I only got to know of it here.
DR. SCHILF: May it please the Court, the report which the witness Mettgenberg has just referred to, Exhibit 324, contains on page 3 of the German copy, a farily long statement by a Sturmbannfuehrer Deppner. This man Deppner in this report voiced the point of view of the police expressed at a discussion in 1943 when what was discussed was a transfer of NN matters to the courts in the Netherlands too. I am only mentioning that by way of explanation for the Tribunal.
BY DR. SCHILF:
Q Dr. Mettgenberg, do you wish to make any additional comments concerning difficulties between the administration of justice and the police concerning NN matters?
A I believe in conclusion it would be good if I referred to Exhibit 447. That exhibit too shows the difficulties that existed between us and the police although this concerned a matter of lesser importance in a technical matters, in fact. It concerns the transfer of NN cases from Cologne to Berslau, a transfer which we believed necessary. At any rate it shows that the police believed it necessary to interfere in such things and to suppress our measures.
Q We have just discussed the ruling concerning the NN problem in the Netherlands. The documents reveals that in the late autumn of 1943 a ruling was made such as had previously been made in the other Western territories of Europe, which were under German occupation. Can you comment on that please?
A It struck us that no NN cases came to us from the Netherlands and an inquiry to the High Command of the Armed Forced showed that the High Command too had made the same observations. Therefore, it had reports made by it's military representatives in the Netherlands and discovered that in effect in the Netherlands the NN prisoners were handed to the police. Legal proceedings did not take place. The High Command of the Armed Forces immediately intervened and by a decree to the Commander of the Netherlands ordered that the treatment of NN matters in the Netherlands was to be the same as in the other occupied territories in the West. I considered it advisable to go there myself and form an opinion of my own of events there. Although I used to go on many officials trips I only wont on one official trip in connection with NN matters and that was this trip to the Netherlands which I made together with Dr. von Ammon. At the Hague we negotiated with the competent authorities and we heard about the facts which I have just described. In effect the military forces in the Netherlands had not made use of their privilege to transfer tho NN matters under Article 3, section 2 of the Military Code of Penal Procedure they had not made use of that. During those discussions at the Hague we as always took up our basic position that in all circumstances legal proceedings had to be carried out. As far as the Court of the Armed Forces themselves did not want to deal with the matters they were to transfer such proceedings to the civil courts, but on no account were the prisoners to be handed to the police without proper judgment having been passed.On this point too concerning the Netherlands we were acting in complete agreement with the men at the Central Office of the High Command.
Q Dr. Mettgenberg, concerning this agreement of which you have just spoken, this agreement with the Chief of the Legal Department of the Armed forces, I suppose it was obvious that you should have been informed about military questions, and I assume it was also discussed as to whether the administration of justice of the Armed Forces, which was actually competent, was satisfied with the jurisdiction of the ordinary courts, in so far as these cases had been transferred by the armed forces to the ordinary courts.
Would you please tell the Tribunal about the information you obtained on that subject at the time?
A I was always desirious concerning the good relations which existed on these matters between the Ministry of Justice and the High Command of the Armed Forces being established also between the Courts which dealt with the NN matters and the military authorities in the occupied territories. It is obvious that the Prosecution and the Courts in Germany could only know conditions in the occupied territories from a distance.