Q Yes. My question is: The preliminary report of the trial, from the attorney general in Prague, notifying the Ministry of Justice of what had happened in the trial, was endorsed by you, as you can see there. The date of that report is 1 February, 1943. I am wondering when you endorsed the case file and report of a court incident to your business in Department IV, what did that mean actually, insofar as the condemned man was concerned.
A If I remember correctly, and what I could find out now by looking through the file briefly, I was working on those files at the time as temporary referent and district referent, for penal cases from the area of the district court of appeal Prague. I may also add that the supervision over German authorities of Administration of Justice in the area of the district court of appeal of Prague were up to the Reich Ministry of Justice together with the Reich Protector, and without doubt, the Reich Protector was the superior authority between the two, so that we in the Reich Ministry of Justice had relatively only a very small opportunity to influence. What my notes meant here in detail, I cannot decipher in a hurry, I would have to have a sufficient amount of time in order to look at these events.
Q Yes. We won't go into detail about that case, but it does appear, does it not, from that case file that you worked with the case and that the facts, substantially as I have stated them, were known to you, and that you endorsed the report of the Prague Special Court; is that much true?
A Whether I considered that it was good, I cannot say now in a hurry, that I knew it, that is obvious.
THE PRESIDENT: May I interrupt you. The Court did not rule on your Exhibit 544. It is received in evidence.
MR. WOLLEYHAN: Thank you, Your Honor.
Q. Before we leave this field of criminal cases involving fo reigners, or nationals other than Germans, I show you now, Dr. von Ammon, some notes on a conference that you both attended and prepared the notes.
This conference was held on the 12 October 1941, in the Ministry of Justice. On the agenda was to discuss measures regarding criminal procedure against foreign workers in the Reich. It appears that you wrote up the notes on the conference and to that conference notes attached alist of attendance, that is, the people who were there. It appears that in addition to yourself, Dr. Vollmer was there and Dr. Mettgenberg representing the Ministry of Justice. Then we have a number of mother people who attended the conference listed there and they representend the office of the plenipotentiary of the Employment of Labor. I ask you was the man who attended the conference on behalf of that office representing Fritz Sauckel. Was Fritz Sauckel plenipotentiary for the employment of labor then?
A Yes.
Q And these other men who attended the conference represent the RSHA. I believe Kaltenbrunner was the chief of the RSHA at that time, wasn't he?
A First, I would like to make a remark. You said that the discussion took place on the 12th of October, 1941. That apparently is not correct.
Q In 1943, I beg your pardon.
A In 1943, Kaltenbrunner must have been chief of the RSHAas far as I remember.
Q And the Reich Fuehrer SS was Himmler, of course.
A Yes, yes.
Q And the propaganda Minister was Dr. Goebbels, of course.
A Yes.
Q And the German labor front was Robert Ley, naturally?
A Yes.
Q And all these people who attended this conference represented those various offices and people, didn't they?
A Yes.
Q Now you and the other discussed a number of things at that conference, including the speeding up of decisions on execution of death penalties with regard to these foreigners in the Reich, and the necessity of enlightening foreign workers on German war time criminal law and the Foreign Office was complaining that the death sentences against foreign workers were being carried out without consulting the Foreign Office, and the Foreign Office also asked legal advice as to whether or not foreign workers could be penalized more severely that Germans in criminal proceedings and I believe that toward the end of the conference you boss, Vollmer, assured the Foreign Office that foreign workers could be penalized more severely than Germans, since they are more dangerous than Germans because of their foreign character and origin. I ask you Dr. von Ammon, if you stated last Friday and this morning, if different treatment of these foreign workers was not contemplated by this conference, why was the conference necessary? It is obvious isn't it, from this conference, that foreign workers were not going to be treated the same before the law as Germans, isn't it?
A If I am not very much mistaken the conference at that time was initiated by the Foreign Office. The Foreign Office had desired to be allowed to participate in decisions concerning the execution of a death sentence. In the Ministry of Justice misgivings had been raised about this for the reason that by the participation of the Foreign Office, the decision about clemecy questions might under certain circumstances be very much delayed. That was, as far as I remember, the main reason for that conference. In detail I cannot answer these questions now. In order to do so, you will have to give me an opportunity to read this record through at peace and at case. But I may comment to an other remark of yours Mr. Prosecutor.
Q One moment, Dr. von Ammon, excuse me. Merely from what I said and as you can see from the title of the conference and from a general scanning of the notes that you write it is obvious, isn't it, that foreign workers in Germany were not tried or treated by the law the same way as German nationals were, isn't that obvious from the nature of the conference itself?
A No, it is not obvious.
Q Then tell me this, if it is not obvious, and you were going to tell me that foreign workers were treated by law the same as Germans, then was there any purpose in having conference at all on that subject?
A They were treated insofar different and that is, better that Germans because the Foreign Office took interest in them. In death sentences against German citizens the Foreign Office was not interested at all but was interested in death sentences against foreigners and that is the reason for this conference.
MR. WOOLEYHAN: May it please the Court, the Prosecution offers these conference notes which we now discussing written by the defendant von Ammon as Prosecution Exhibit 545.
WITNESS: May I make a remark in regard to this document?
THE PRESIDENT: The exhibit is received.
BY MR. WOOLEYHAN:
Q Yes, Certainly.
A I would like to remark in regard to this document that this record is signed by me but I believe that I can remember with certainty that in the note which I had written my division chief Vollmer inserted some notes. I would have to see the original in order to find out what I actually wrote in my handwriting and what Vollmer wrote as supplementary remarks.
Q If you can remember those details, who signed what, why can't you remember what was in it?
A The approximate content I can remember. Details, of course, no longer, as it was four years ago.
Q With respect to the Nacht and Nebel material you discussed the Prosecution exhibit No. 335. In that report of 29 and 30 of June 1944, you stated that since the Allied Invasion of France over the Normandy Beachheads had not caused undue tension and that it would be unnecessary at that time to make penalties in the nacht and nebel cases more severe. Now tell me, was the enforcement of the nacht and nebel program in your opinion, both then and now directly dictated and tied in with the progress of hostilities?
A Not with the progress of hostilities but from the strength of the resistance movement.
Q In other words, the nacht and nebel in your opinion was not primarily directed at the actual fighting of the war but in consolidating and keeping in good order the area thereby acquired, is that it?
A One can say so, I believe.
Q Now along that line would you say that the military commander in France was of the same opinion as you when he writes in document NG 231, which is Prosecution Exhibit 332. He says there on the first page, or rather he describes the deportation of nacht and nebel prisoners from France to Germany in accordance with Hitler's directives, as a most effective punishment, exceeding the death sentence, in deterrent effect. You would rather from that wouldn't you that the military commander in France was very satisfied with the nacht and nebel as far as keeping from France in line?
A Yes, yes.
Q Now, Dr. von Ammon, if the nacht and nebel defendants, as you say, were fully informed of the nature and results of proceedings against them, why then did you deem it necessary, not once, but twice, to re-draft that letter to Bormann which is Exhibit 327, if these women knew all that was going on?
Why were you so anxious to have Bormann inform the women that reprieves had been granted. Obviously they didn't know it before?
A. Mr. Prosecutor, unfortunately, I did not quite understand your question. I wrote the letter to Bormann twice because Thierack would not sign the first draft.
Q. Yes, Dr. Von Ammon, I understand that, but I am asking you now, why you bothered to write it even once if these nacht and nebel defendants as you say, knew all about the proceedings against them any way?
A. They did not know that they would not have to count upon the execution of the death sentence until further notice. Hitler had not issued an express pardon for these women but had only granted a reprieve and had only decided that after the end of the war a definite decision was to be made, and until that time the poor women were in uncertainty, they did not know whether the death sentences would be executed or not and I wanted to do away with it and let the women at least be given information which was somewhat calming, that at least until further notice they would not be executed.
Q. Then at least so far as their clemency please being granted or refused and the basic fact whether they were going on living or not, they weren't informed about that, were they?
A. No, they were not informed and that was supposed to be the purpose of the letter, thus to achieve that they would be informed.
Q. Yes. Now the defendant Mettgenberg the other day, if I am not mistaken, said that some nacht and nebel defendants at least were acquitted and returned to their homes in the western occupied territories, whereas you have said that for reasons of military security and secrecy, it was impossible either to send them home after they were acquitted or to release them in Germany.
Now between the contradictory statements of yourself and Dr. Mettgenberg, just which is the case, did they go home or didn't they?
A. I believe there is no contradiction between our testimony. On principle, it was like this: The acquitted nacht and nebel prisoners and those who were not indicted at all had to remain in Germany until the end of the war. However, the possibility had been created for those whose innocence had been found out before trial or in the case of whom it was found out before the trial that no adequate suspicion against them existed, these were returned to the occupied territories. Use of that possibility in individual cases was made but however, not to a very large extent, and the rule was that the persons concerned remained in Germany until the end of the war.
Q. And that was in the custody of the Gestapo, is that right?
A. Yes, at least after the changes which Thierack made since October, 1942; before October 1942, the other regulation applied, that they were in the custody of the administration of Justice.
Court No. III, case No. 3.
Q Now, Dr. von Ammon, there is just one thing further in this custody-of-the-Gestapo business that confuses me. After the arrangement had been made late in 1944 to transfer these nacht and nebel prisoners to the Gestapo for protective custody, there has been a lot of talk here about the fact that the court authorities finally handed over to the Gestapo these people, at least in some measure.
What actually was involved in this handing over of hacht and nebel prisoners to the Gestapo as far as the courts and the justice Administration were concerned? By handing over, what actually did happen so far as the Courts and the Ministry are concerned? Did you sign a re lease? Did you actually put them in trucks and take them to the other side of town, or what happened?
A Unfortunately I cannot give you that information. You have to turn to the referent of the Department for Penal Administration, to your witness Hecker, who carried out those transfers.
THE PRESIDENT: We will recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: Persons in the count room will please find their seats.
The Tribunal is again in session.
BY MR. WOOLEYHAN:.
Q. Dr. von Ammon, with respect to the winding up of the Nacht and Nebel affairs in the Ministry in the handing over of these people to the Gestapo, the witness Hecker, in Exhibit 416, says that you attended a number of the conference during which this method was ironed out. It's surprising that you don't know how it happened. How did these people get off your hands? Was it a paper transfer or what was it?
A. No, two ordinances about Departments 4 and 5 were issued and they were issued to the Chief General Prosecutors concerned to the effect that they were to transfer the prisoners to the competent authority, the Gestapo.
Q. Now, you have said frequently here that you were always out to avoid severity in these Nacht and Nebel sentences and, in that respect, that you opposed the harsch and violent policies of your boss Vollmer. Tell me, in August, 1943, when Vollmer was required to give all the members of his department, including you, an efficiency report, what efficiency rating did he give you?
A. I have no idea. I did not see that efficiency report.
Q. When were you promoted to Ministerialrat?
A. I was promoted on the 20th of April, 1943 - but the promotion took effect from the 1st of March, 1943.
Q. And that promotion in 1943 was during the time you were working on the Nacht and Nebel program, wasn't it?
A. Yes, it was.
Q. And Vollmer, as your boss, had to approve that promotion, didn't he?
A. I assume that his opinion was heard, but the decision was naturally not made by him.
Q. If Vollmer disliked your policies and attempts to tone down the Nacht and Nebel program - if Vollmer disliked that enough and disapproved your promotion, you wouldn't have been promoted, would you?
A. I don't know at what time Vollmer made those statements. As far as I know, Vollmer became Ministerial Director only in January, 1943. As I said before, I became Ministerial Councilor with effect from 1st of March, 1943. During that short period, I believe it was hardly possible for Vollmer to be able to form an opinion on my work concerning NN cases.
Q. Regardless of that, would you or would you not have been promoted in 1943 if Vollmer had disapproved of it?
A. I cannot answer that question. I don't know to what extent Thierach would have attached importance to Vollmer's opinion.
Q. Tell me, was it .... No, I'll withdraw that.
You mentioned that the courts in enforcing the Nacht and Nebel program, by trying Nacht and Nebel defendants particularly the special courts, had been moderate in their sentences. Now, in view of that, I'm wondering if that is true for the reason that after the Nacht and Nebel program was terminated by these arrangements in 1944, you wrote a letter to the Prosecutor General in Munich and you told the Prosecutor General in Munich that, in view of the new arrangement concerning the treatment of Nacht and Nebel prisoners in the future, namely their transfer to the Gestapo "there no longer will be executions of Nacht and Nebel prisoners in any large numbers."
Now, tell me, Dr. von Ammon, if these courts were so lenient and gentle with these Nacht and Nebel defendants, why did you see fit to mention that death sentences weren't going to be in any large numbers in the future? That's the same as saying they were large in the past, isn't it?
A. I stressed above all that the sentences passed by the special courts were moderate. It is true that the special courts only passed a few death sentences. I did say, however, on the contrary that the People's Court did pass a large number of death sentences and even mentioned that 50% of the persons indicted by the People's Court were sentenced to death. Those sentences which were intended to be executed in Munich, those were sentences which had been passed by the People's Court.
Q. In any event, whether it was the People's Court or the special court, after that Nacht and Nebel program was dissolved, you were of the opinion then that large numbers of death sentences would not be passed in the future?
A. No, actually I was of the opinion that no further death sentences would be passed. The only thing that could still happen was that death sentences would be executed that had been passed prior to September, 1944.
Q. And from your letter, it appears that up until that time, they had been large in number, does it not?
A. Well, that is a relative concept - that word "large".
Q. Oh, of course.
A. I believe that in view of the long period of time which from 1942 until the end of 1944 the number of death sentences which were actually passed is relatively small.
Q. May it please the Court, the prosecution offers as Exhibit # 546 the letter written by the defendant von Ammon which we have just been discussing.
THE PRESIDENT: The exhibit is received.
BY MR. WOOLEYHAN:
Q. Thank you, Your Honor. Do you remember this anonymous gentleman that you and the defendant Klemm saved from being sent to the Army because he had been lingering around an air raid shelter in Berlin? Was that gentleman that you and Klemm saved from the draft the same Dr. Ehrhardt that testified here on behalf of you the defendant Klemm, and numerous others?
A. Yes.
Q. That's all.
THE PRESIDENT: Just a moment, Mr. Prosecutor. Did you offer NG 549 as Exhibit 545?
MR. WOOLEYHAN: Yes, Your Honor.
THE PRESIDENT: The Exhibit is received.
MR. WOOLEYHAN: May it please the court, if there will be redirect I will wait, but I have two or three documents that were previously offered for identification for which I now have the exhibits available. If now is the proper time to offer, I offer as Exhibit 540, prosecution's document NG 1066 which was previously marked for identification as 540.
THE PRESIDENT: It is received.
MR. WOOLEYHAN: With respect to the defendant Mettgenberg I have two documents which are rebuttal evidence which I wanted to offer last week but they weren't ready. That are ready now.
This first one, NG 1893, is a complete case file of the Special Court in Vienna, Austria. On 10 November 1943, the special court in Vienna sentenced the chauffeur Boes to death. Boes was charged with having tried to help a Jew to procure Ayran Court No. III, Case No. 3.documents in order to disguise his Jewish extraction.
Besides, the defendant allegedly pretended to be a member of the Gestapo. After the death sentence was passed, a letter from the Ministry of Justice, signed by the defendant Mettgenberg, directed the Attorney General in Vienna to execute the defendant. It appears from the document that the defendant was, in fact, executed in Vienna on 9 December 1943.
THE PRESIDENT: Did you have that marked for identification?
MR. WOOLEYHAN: No, your Honor, we did not. We offer it fully at this time as Prosecution Exhibit 547.
THE PRESIDENT: The exhibit is received. What about exhibits for identification 538 and 539?
MR. WOOLEYHAN: They are not yet in shape to put in, your Honor.
With respect to the document which was just received in evidence, the English translation on pages 13 and 16 is faulty. On page 13, the statement "illegible signature" clearly reads on the original "Dr. Thierack". On page 16, in the lower right hand corner, the handwritten initial "M" is the defendant Mettgenberg.
The next document likewise concerns the defendant Mettgenberg. It is NG 1895. There is a case record in this document of the Court of Appeals in Dresden which, on 27 November 1944, sentenced two Czechs, Czechoslovakian nationals, to death for alleged preparation for high treason. The Alleged crime was that the defendants had spread foreign news broadcasts in order to undermine the fighting morale of the German people. The clemency appeal was denied and the order to execute the two defendants is signed by the defendant Mettgenberg. The Prosecution offers as Exhibit 548 this document NG 1895.
THE PRESIDENT: The exhibit is received.
MR. WOOLEYHAN: Thank you. I have finished, your Honor.
BY JUDGE HARDING:
Q Dr. von Ammon, you have stated certain offenses for which persons were tried before the Special Court under Nacht und Nebel; you have mentioned espionage and sabotage; what other offenses were they tried for?
A I also mentioned guerrilla activities under Article 3 of the Extraordinary War-Time Penal Decree, of aiding and abetting the enemy and, under Article 91-B of the Penal Code.
Q Now under Exhibit 334 there is a list of offenses in Kattowice, which I think is submitted. The offenses are listed there or at least part of them. One of then is furthering Bolshevik efforts, then there is an offense of favoring the enemy, then there is an offense listed of distributing pamphlets, Communistic activities and for distributing writings contrary to Germany; do you consider them war crimes?
A Yes, the ordinance containing such cases which were issued by the competent military authorities did declare then offenses. Under Article IV of the Extraordinary War-Tine Penal Decree, it is provided that the military commanders could issue penal sentences for the maintenance of order in the occupied territories.
Q Do you take the view that any act prohibited by the military authorities in the occupied area constitutes a war crime?
A Well, whether one wants to define it as a war crime -- Well, it is at any rate a crime against the occupying power under international law and can be punished.
Q Would you take the view that any act prohibited by the military authorities in an occupied territory can legally be punished under international law?
A Insofar as the military commanders within the scope of their authorization and the Hague Land Warfare Convention deem it so.
Q Does that not depend on the question whether it was necessary from a military standpoint?
A That at any rate is a question which we were not able to answer, that was a matter for the military authorities, but at any rate I can well imagine that supporting of Bolshevik activities and the production and distribution of leaflets was fit to disturb order in the occupied territory on a limited scale.
Q You tried any one that was handed over to you by the military authorities; is that correct?
A Unless the proceedings were suspended at the beginning because not sufficient suspicion of a punishable act having been committed did exist.
Q That is on the basis that there was no evidence to support the act changed?
A Yes, if the evidence materially was not sufficient to make it appear likely that the defendant would be convicted no indictment was filed.
Q But you filed an indictment if the evidence was sufficient to convict any offense for which this person was handed over; is that not correct?
A In that case the competent senior public prosecutor or the Chief Reich Prosecutor at the People's Court did file an indictment.
BY THE PRESIDENT:
Q Dr. von Ammon, I am referring to Exhibit 303, the decree marked secret, entitled the Fuehrer and Supreme Commander of the Armed Forces, signed by Keitel on 7 December 1941. I am under the impression that there was some testimony that NN procedure applied only in the West; are you sure that is true under the original terms of this decree. The preamble refers to the opening of the Russian campaign and Communist elements and then it refers to the occupied territories; what is your view on that, I am asking merely for information?
A Your Honor, in number five of that decree it is laid down that the chief of the O.K.W. defined in what occupied territory that decree is to be applied and the chief of the O.K.W. did decide that the N-N decree was to be applied in France, Belgium, the Netherlands and in Norway, in other territories it was not applied.
Q Do you mean it was never applied in other territories?
A Yes, that is what I mean. It was never applied in other territories.
Q Can you give me your best estimate as to the number of persons who were brought into Germany under Nacht und Nebel procedure?
A Exhibits 325 and 333 give information on that. Exhibit 333 gives a survey of the state of affairs of the Nacht und Nebel procedure on 30 April 1944. It is stated that the armed forces authorities had transferred to the competent senior public prosecutor a total of 2,014 proceedings which refer to 6,639 defendants. That figure may have gone up slightly during the following months, but not very much because then the invasion happened and after that new arrangements were made for N-N proceedings. As I said before it is not likely that that figure rose a great deal.
Q We have examined those two exhibits. My question of you was for your own personal estimate as to the total number brought in under N-N procedure during the entire period of the effective force of the N-N decree, the entire period?
A My knowledge is merely based on these two exhibits. These surveys were compiled at the time at the competent office of the Ministry of Justice. They cannot claim complete correctnesss, but those figures must be approximately right. I cannot say anything over and beyond what it says in these exhibits. In particular, if I may add that I can not say what prisoners remained with the police. You have seen from the exhibits that the police did not transfer all prisoners to the Administration of Justice.
Q Can you tell me what department gathered the information in the West on the basis of which N-N prisoners were brought into Germany; I mean was it the army or the police?
A.- It was the army. It was the competent military commanders, and they were the military commander at Paris for the cases that occurred in France; the military commander in Brussels for Belgium; and some districts in northern France; the military commander in the Netherlands for the cases that occurred in Holland; and the military commander in Norway for the cases which occurred in Norway.
Q.- Were the military personnel who made the investigations brought into Germany for the purpose of testifying in the cases which they had investigated?
A.- It happened that such persons were examined as witnesses at the proceedings.
Q.- One or two other little matters. I understood you to say that you did not know of any innocent person who was brought to Germany under Nacht und Nebel procedure.
A.- I was referring to the assertion of the Prosecution. The Prosecution had maintained that evidently innocent persons had been treated in exactly the same manner as guilty NN prisoners, and it was in reply to that I stated that evidently innocent persons were never brought to Germany at all. That is to say as far as my knowledge goes. If, however, it did happen, that a person was evidently innocent and had been brought to Germany, then there was a possibility to release him back to the occupied territories.
Q.- I still understand you to say that you knew of no innocent person brought under Nacht und Nebel procedure.
A.- It may have happened, natureally, but -
Q.- I am referring to what you said. Did I correctly understand you to make that statement that you knew of no innocent person who was brought to Germany under Nacht und Nebel procedure?
A.- I would like to restrict that to evidently innocent persons, as opposed to a person whose innocence only later was made clear. That, naturally happened too, and such cases did occur and such cases were not brought to Germany.