Furthermore, it was necessary to get in touch with other referents in the office of Hr. Lammers and Meissner, and for all these matters Guertner used me.
THE PRESIDENT: I understand, that is all.
BY DR. HAENSEL:
Q May I continue right here on the same line of questioning as the Tribunal, especially the interest which was manifest in the question as to whether property which was taken away from the Jews by violent actions had been returned to them. What was your tasks in all these cases. Did they have anything to do with criminal justice; or, with civil justice, that is legal questions concerning property?
A In all these matters I functioned as an official of the Ministry of Justice who was commissioned and assigned to carry cut investigations.
Q Since as an official you were bound by your duties, your rights and your duties, did that leave you any opportunity at all to gain any insight or to intervene into the jurisdiction of civil courts?
A Of course I had no authorization to interfere with the workings of the penal courts nor the civil matters.
Q Authorization -- I should like to extend the scope of that term to possibly not even a technical possibility because I refer to the excerpt from the real estate register which was submitted to you before. Would you mind it very much if I put the question to you whether during your entire life you had much to do with real estate registers.
A With the exception of the time when I was a student and active at the real estate office for several weeks, I no longer had anything to do with read estate registers.
Q You just proved that because if we go on reading that sheet, then we find the answer to the question which the Tribunal wanted to have, because on 5th December, 1938, Gauleiter Holz' name was entered as the proprietor or the owner in that register, and the approvals for correction are dated 29th November, 1940. Now, you can help us. Do you remember; do you recall that the clearing up of these injustices concerning the real estate property occurred in the way that on one single day Holz had to sign an entire pile of such approvals of correction?
A I remember that because Holz had received the order from Minister Goering to sign.
Q And that concluded your special mission in these cases, didn't it?
A My assignment, my mission was already completed, when after my investigations were completed in February, 1938, I was in a position to inform the Minister of Justice what had been done.
Q On the part of the prosecution elements were entered into this matter which come from an entirely different field, the confiscation of Jewish property; during your work on that commission, did you have anything to do-- any contacts with these matters, or, was that quite outside your field of activity and also your sphere of authority or influence.
A To discuss these questions which were regulated by a decree based upon the arrangement between Minister Goering and the finance minister, for these questions, to take care of these questions, an official of the finance ministry was present. I had nothing to do with these matters.
Q May I revert to a subject previously discussed. It is very brief; I should like to ask you to tell us the following: When you came to Hamm, was the procedure in NN cases already developed;
was the matter only routine, and was it so that you only became acquainted with a procedure which had become customary; or whether you interfered by giving instructions or directives.
A I did not give instructions in Hamm because there was a referent who for about three years had handled NN cases as they came from the Chief Public Prosecutor.
THE PRESIDENT: We will recess gentlemen.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. HAENSEL:
Q.- The Tribunal tried to clarify why, in trials where Poles with Polish names appeared, you had come to the conviction that they were German. I would now like to ask you to recall briefly the legal basis on which you think you were basing your actions. First of all, do you recall the published treaty between Russia and Germany regarding the annexation of Poland?
A.- Yes, I know the Treaty; I believe it is the Treaty of the 28th of September, 1939.
Q.- Do you remember, accordingly, a Fuehrer decree which ordered the incorporation of the Eastern Territories?
A.- I believe I recall a Fuehrer decree which referred to Article 3 of this Treaty, in which the USSR and Germany undertook the reorganization of Poland that had fallen apart and each, for his part-- Germany on the West of the demarcation line and Russia on the East -- wanted to regulate it without an interference of a third party.
Q.- Then the question was put to you as to how you formed a picture in regard to the citizenship, and I missed a technical expression in your statements. I ask you again to search your legal memory as to what this return of the Germans to German citizenship was technically called.
A.- From the point of view of working in the field it was very simple, because at the moment when we were concerned with a foreigner, there was a note on the file "foreigner", and his personal data were recorded. However, the technical expression that you are referring to is probably the one of rapatriation of those Germans who had been expelled from Poland in 1918.
Q.- Was there any legal regulation about this?
A.- I believe so.
Q.- Thank you; yes, your belief is correct. By this, of course, I do not mean to say in this part of this trial here to what extent these norms could form objective international law or could be attacked.
However, I do want to ask you whether, in your activity as an official, as a civil servant, you felt that you were obligated to first act in accordance with the law in regard to the points which you had before you and which had been promulgated.
A.- I felt obligated to apply the existing laws and to comply with them.
Q.- A letter from Gauleiter Hoffmann was shown to you today in which Gauleiter Hoffmann in some way or other, tried to have you declared essential. Did you know of that letter before, and did you give direct cause for its being written?
A.- I say the letter here for the first time, and so far I had not hoard anything about it either. I did not even hear anything about it when I saw Gauleiter Hoffmann in the jail hero.
Q.- There is something written in this letter about your membership in the Waffen SS. This membership, according to your testimony, seems actually not to exist, really.
A.- I have a military pass of the German army in my possession, and from this pass it is apparent that I was a member of the Reserve Corps I of the Wehrmacht until the end of the war.
Q.- If you had known the draft of the letter, would you have corrected it?
A.- Well, I probably would have corrected it.
Q.- An efficiency report by Thierack was put to you. Will you please tell us, in the language of the German Civil Service, what is meant by saying that somebody is "praised out of his position", or the practice which was developed in German official circles to have a man one did not like removed by kicking him upstairs in that way?
A.- From the many addresses which are in this draft, Party-Chancellery, Reich Ministry, Minister of Interior, Reich Treasurer, it is apparent that a number of offices in the Reich had to agree to this transfer. And perhaps, under the circumstances, if one wrote to all those offices it was not appropriate to write bad qualifications, that is, for Thierack to write what he really thought.
Q.- The Prosecution made the point that it would have been simpler for Thierack to get rid of you if he merely had you no longer declared essential. Let us assume that at that time -- that is, 1942-1943 -- he would have done so, at a time when you, as you have described here and about which a number of affidavits have been or will be submitted, had the possibility to obtain other positions in other offices, in official agencies or in industry, would the simple result of having you no longer declared essential by Thierack not have been that these other offices important to the war effort would have had you declared essential?
A.- That would without doubt have been the result. Most of the agencies assured me that they'would do so, that if Thierack said that he would be willing to have me leave the Ministry of Justice, then they would take me from the Ministry of Justice.
Q.- Then Thierack would only have done you a favor at that time by doing so?
A.- Yes, a big favor.
Q.- Now, you turned against Thierack later on -- much later on -having you declared as no longer essential. Was not your main objection that he did it so secretly that you were not in a situation to find another position and to take it over?
A.- In this step of having me declared as no longer essential on the 17th of October I saw that the unbelievable factor for me was the following: On the 17th of October, 1944; I had again made the attempt, through an official of the armament industry, to have Thierack requested that he release me from service with the Administration of Justice. On the morning of the 17th of October this official had called on Thierack and subsequent to that conference he told me the contents of that conversation in a letter. Thierack told him that I was absolutely essential for the Admi nistration of Justice, and about two hours later he must have issued the order to telegraph the draft board in Hamm, to tell the draft board that I was no longer essential.
Because of that incident I called on the chief of the Personnel Department and he told me that as Chief of the Personnel Department even he was not informed about these events.
Q.- The Prosecution apparently had the impression created that the transfer to Hamm was a question of mathematics for you regardless of whether it was pleasant or unpleasant; that is was a question of salary. Will you please state briefly two matters: first, to what extent was your financial position at the time such that these few hundred Marks were of absolutely not the slightest interest to you; and, secondly -
THE PRESIDENT: The Tribunal is not greatly interested either in that matter. The matter is of very small importance in the first place.
DR. HAENSEL: All right.
BY DR. HAENSEL:
Q.- In regard to the SS rank, the Tribunal put the question to you whether the Obersturmbannfuehrer -- Lieutenant Colonel - was a title in the SS and you answered that question by saying yes. However, I believe that does not answer the question exhaustively. The contents of the question seem to me to lie mainly in the question of whether it was only a title of the SS, so that if you have that title it refers, without any qualifications, to the SS or whether a number of other affiliated organizations also had that title. Can you comment on that?
A.- Three independent affiliated organizations had the same title. They were the General SS, the Waffen SS, and the SD; and in each of these organizations the title had another meaning.
Q.- And in addition to that what other formations I want to know the general validity of that title apart from "SS" Obersturmbannfuehrer had that title in General?
A.- Oh, I see. The SA too.
Q..- Do you remember, in regard to the question of the SD rank which was conferred upon you, that at that time, in particular when that occurred all officials of the Gestapo of the Kripo had a so-called SS rank conferred upon them regardless of whether they were members of the SS or not? The clue is assimilation of rank.
A.- I know about that. All officials had gradually had ranks conferred upon them by the police and police officials all were carried on the personnel roster of the SD, and merely the leading officials of the police became leaders of the General SS and police leaders.
Q.- From your knowledge pan you answer the question as to whether, on account of this assimilation of rank, it was possible that a man wore a uniform which was quite similar to the SS and also to that stars and insignia and was working in the police but without doubt did not belong to the SS?
A.- Yes, that existed. That applied to almost every criminal official.
DR. HAENSEL: This is a problem to which I shall permit myself to return in my argument. May I also refer to the IMT opinion on the SD and Rank Assimilation? I have concluded my redirect examination.
JUDGE HARDING: What part of the IMT. Opinion is that found in, Doctor?
DR. HAENSEL: The I.M.T. Opinion, Chapter Gestapo SD, Paragraph 5 a.t the end.
THE PRESIDENT: There being no further examination of this witness he is excused from the witness box. You may call your next witness.
DR. HAENSEL: I then ask to have the witness excused and to be permitted to call my other witness, Otto Lenz.
(Witness excused.)
OTTO LENZ, a witness, took the stand and testified as follows:
JUDGE BLAIR: Raise your right hand and be sworn:
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 BLAIR: You may be seated.
DIRECT EXAMINATION BY DR. HAENSEL:Q.- Witness, please tell the Tribunal your full name and your present profession and the place where you are living.
A.- Dr. Otto Lenz, Berlin, attorney at law and notary.
Q.- What were you in 1933?
A.- In 1933 I was referent in the Prussian Ministry of Justice. I was a personal referent of the then Undersecretary Hoelscher.
Q.- After Hitler took over the government in 1933 did you work in the Prussian, and later the Reich Ministry of Justice? Did you remain there?
A.- Until 1938 I remained in the Ministry of Justice and I then left it and became a practicing lawyer.
Q.- Can you make some brief remarks about your political opinion in regard to the Nazi regime?
A.- I used to be a member of the Center Party - Zentrums Partci -. Before that I was personal referent of the Former Prussian Minister of Justice Schmidt, who also was a member of the Center Party, and of Under Secretary Hoelscher who also had been a member of the Center Party. Furthermore, I was a very good friend of a number of representatives in the Reichstag of the Center Party and from the very beginning I had a negative attitude toward National Socialism.
Q.- In that respect was it an established fact that one could say generally that you. were not only distant from National Socialism but that you were an express opponent?
A.- In the Ministry it was probably well known that I had a negative attitude toward National Socialism and that because of my negative attitude later on I left it, too.
Q.- Can you tell us when you met Dr. Guenter Joel?
A.- As far as I remember Joel joined the Ministry of Justice in March or April, 1933, when Kerri took over the Ministry.
Q.- And you were in the Ministry too?
A.- Yes, I was still in the Ministry.
Q.- When you left the Ministry did you then maintain the contact with Joel?
A.- Yes. Until the very end I was in contact with Joel and personally and socially I continued to have contact with him.
Q.- You say "until the end." Do you mean until Joel was transferred to Hamm, that is, as long as he was in Berlin?
A.- Yes, as long as he was in Berlin.
Q.- That was in 1943. Since you met him in 1933 that would, in other words, be a period of ten years during which you had contact with Joel and could observe him, so that you probably gained an impression about his official attitude during that period. Can you tell us something about that in so far as it is of interest for the trial?
A.- As I already stated, Joel joined the Ministry in 1933 and we older officials assumed that he came as a representative of the new National Socialist trend. Accordingly, at first we were somewhat reserved. Then I noticed Joel because in a number of cases in which matters were concerned where members of the party had committed punishable offenses, Joel saw to it, very energetically, that these party members were prosecuted.
Thus I still remember the incidents in connection with the Concentration Camp Papenburg. Papenburg had an SA Guard and these guards had committed a number of abuses on the inmates. At that time the Ministry had attempted to take some steps but it did not succeed and only when Joel personally went there, in spite of endangering his own person because the SA guard was very strict and threatening, and did not want to admit a representative of the Ministry of Justice, when he personally intervened and investigated the occurrences, prosecution was instituted and, as far as I recall, later on the guards were at least in part removed and replaced by others.
Q.- Witness, I want to lead you somewhat to our subject. You said that it came to your attention. To come to someone's attention is a concept which means that somebody stands out. Can you tell us something about that, whether Joel, through this activity which you have described stood out from his surroundings and through what peculiarities of character he was distinguished?
A.- Joel was one of the few who developed the real initiative in order to follow up punishable offenses which had been committed by members of the Party and to have them really prosecuted.
Q.- Was that very easy or was that connected with personal trouble and personal work?
A.- Well naturally , it was quite difficult at the time because, in part, the persons concerned were in high positions and the person who prosecuted them always had to count on it that, through that, he would get into disfavor and, at least, jeopardize his official career, and I have to say, in appreciation of Rothaug, that he never paid any attention to that.
Q.- Do you remember the Central Public Prosecution?
THE PRESIDENT: I understood the interpreter to say "Rothaug" when I'm quite sure she meant "Joel".
THE INTERPRETER: Yes, your Honor.
BY DR. HAENSEL:
A.- The Central Public Prosecution, at that time, was established in order to prosecute offenses, especially those that had been committed by Party members.
Q.- And who worked there in addition to Joel and what was the sphere of tasks?
A.- In addition to Joel, especially Prosecutor von Haacke was working in the Central Public Prosecution.
Q.- And the special field of activity was?
A.- As I have already stated, to take steps against punishable offenses that had been committed by Party functionaries, especially those who were high up functionaries.
Q.- Do you remember that Guenther Joel assumed a rank in the SD and that this happened at the time of Guertner in connection with the activity in which Guertner employed Joel?
A.- I don't know whether this happened, at the time when I was still in the Ministry. At least, I do not recall it for certain.
Q.- But the fact of the SD?
A.- The fact, yes, and I assume also that Joel took over that position in agreement with Minister Guertner.
Q.- Did you observe that Joel's attitude changed after this rank had been conferred upon him and after he had been given the task of being the liaison man with the police?
A.- No, I did not make such observations.
Q.- You said that Joel energetically worked toward the prosecution of Party members who had acted contrary to law. Does that describe his activity and outline his activity or can you testify about how he acted on behalf of people who were persecuted by the Nazis?
A.- In a large number of cases, which I brought to him when I worked as a practicing lawyer, helped me in order to get people who were persecuted politically out of concentration camps or to spare them from being tried. I would like to cite especially the case of the Munich clergyman Muhler. Muhler, through his sermons, has aroused opposition with the Gestapo and had been delivered into a concentration camp. I asked Joel whether he could do anything in this case. Joel then actually succeeded in getting Muehler out of the concentration camp, even though, as he told me it was very difficult because Huhler had delivered a number of speeches which, at that time, were regarded as being speeches delivered by an enemy of the state.
Q.- Was that an exceptional case or is that one of many cases?
A.- I said already before that in a number of cases Joel helped me.
Q.- You a re speaking of the time when you were no longer a colleague of Joel's but completely separate from the Ministry and had left the Ministry because you were anti National Socialist and were working as a practicing lawyer?
A.- At that time and also during the time before I left he helped me in a large number of cases.
Q.- After you left the Ministry you really officially had nothing more to do with Joel?
A.- Nothing at all.
Q.- The bridge to him, therefore, could only have been either your mutual interest to help oppressed people or a personal connection outside of your profession or both. Did you meet Joel outside of your profession?
A.- As I have already stated, also after I left the Ministry I had social contact with Joel and I knew that he would help me as far as it was within the bounds of his possibility.
Q.- You were thus, I may conclude, in a certain relationship of confidence. Did that go to the extent that you also introduced Joel to friends who were opponents of National Socialism?
A.- Yes, I had absolute confidence in Joel's personal reliability and secrecy and, therefore, I introduced him to my friends who died in the concentration camp Flossenbuerg, my partner in my lawyer's practice, Dr. Etschceid. Moreover, I also introduced him to the lawyer Josef Wirmer who is well known as one of the leading people in the plot of the 20th of July, 1944.
Q.- May I ask you to go into more detail in regard to Alfred Etscheid, not in order to inform me because I was his partner some years before you were, but in order to tell the Tribunal that in the case of Etscheid we were concerned with an especially emphatic opponent of National Socialism who spoke quite openly about this?
A.- That is correct. Etscheid was a lawyer of good reputation in Berlin and was well known because of his radical opposition to National Socialism.
Q.- You mentioned that he died in a concentration camp. Did you turn to Joel when he was arrested and did he help you?
A. Etscheid was arrested in January, 1944 when Joel was no longer in Berlin. However, I informed him and asked him if he would help. Whether he could help, I don't know. Later on, I did not see him any more and during the second half of 1944, I myself was arrested.
Q.- Would you please tell us briefly what happened to you at that time, after your arrest? Were you sentenced?
A.- I was working together with Wirmer in the plot of the 20th of July and, later on, I was arrested because Goerdeler had offered me some high position in the government and later on the People's Court sentenced me to a 5 years term in the penitentiary. In that connection, I would like to mention right away that my wife met Joel in August, 1944, at the Mosel and that Joel told her that it would be a good thing if I would disappear from Berlin because I was very much endangered.
Q.- Did you gain any knowledge as to whether this attitude of Joel's, who helped the oppressed, because you were probably not the only one who sometimes turned to him, and who persecuted Nazis who acted contrary to law, therefore, in the Ministry and among his superiors lost ground gradually?
A.- As far as I know, during later years Joel had considerable differences of opinion with Under Secretary Freisler. Freisler did not like it that Joel again and again called on him and demanded that against punishable acts and arbitrary acts of Party members action would be taken.
Q.- And, therefore, you were probably not surprised that one day Joel disappeared from Berlin?
A.- Not, the last so, since for the same reasons, he was not on especially good terms with Freisler's successor.
Q.- Were you under the impression that Joel disliked leaving Berlin or did you believe that he liked to go to Hamm?
A.- In my presence, Joel repeatedly said that he would like to leave the government service at a time when he could no longer get through with his ideas. The events which brought about his transfer from Berlin I don't know in detail.
Q.- The last time you had contact with Joel was thus the warning which he gave to your wife in the year 1944?
A.- Yes, in August, 1944.
Q.- I have concluded my direct examination.
THE PRESIDENT: Does any other defense counsel desire to examine the witness? It appears they do not. You may cross-examine.
CROSS-EXAMINATION BY MR. KING:Q.- Witness, what position did you occupy in the Prussian Ministry of Justice?
A.- As I have already stated until 1933 I was press referent of the then chief of the Ministry, a press referent. When the National Socialists came to power at the beginning of 1934, I was relieved of the press department and then was in the section for economic trade law until I left the Ministry.
Q.- How long did you serve as a public relations man in the Prussian Ministry of Justice?
A.- I kept the press section referent after the National Socialists came, however, I was no longer independant, but a National Socialist who came to the Ministry new, was assigned to me.
Q.- What was your position in Berlin, did you continue your public relations work there?
A.- I don't understand that question quite.
Q.- I want to know in some more detail what your work in the Ministry of Justice in Berlin was, I asked you if you continued your public relations work there?
A.- Yes, I said until the beginning of 1934 I continued to work in the press section. Then, however, I was released and I only had to continue to work in the Economic Trade Law section, I had no connections with the press section after that.
Q.- And you were dealing with the trade laws from 1934 to 1938 when you left the Ministry?
A.- Yes, exclusively with commercial law.
Q.- You have testified to the good work of Joel insofar as he helped you in several matters to get people in whom you were interested out of concentration camps.
I take it from what you say that this was done largely outside of his office hours, at least you spoke to him outside of office hours and it was not part of his official work; is that right?
A.- I could not say so. During business hours I used to look him up in his office also, but if they were confidential matters naturally I preferred to discuss them outside of office hours with him.
Q.- After 1937, incidentally when in 1938 did you leave the Ministry?
A.- I left in August of 1938.
Q.- Yes. Now you knew of course that at the beginning of 1938 Joel became liaison man with the SS, the SD and the Gestapo, the organizations which were responsible for putting a great many people in concentration camps; you know that, didn't you?
A.- Yes, I knew that he had a position of liaison man to the Gestapo, however, I know that happened in agreement with Minister Guertner because Guertner assumed that Joel would exert a certain influence also in a good sense there.
Q.- Did you have any impression at all that Joel was using his SS, SD and Gestapo connections to get people in whom you were interested out of concentration camps?
A.- Yes, he did that.
Q.- You said that your wife met Joel in 1944 somewhere on the Mosel, do you know where that was?
A.- At Kochem at the Mosel.
Q.- That is all.
DR. HAENSEL: No more questions.
THE PRESIDENT: The witness is excused.
(The witness is excused.)
DR. HAENSEL: May I now go over to the exhibit. I may start on the assumption that exhibits Nos.
1 to 4 the day before yesterday were accepted in evidence.
THE PRESIDENT: May I ask about exhibit 2, my note is not quite complete about that.
DR. HAENSEL: Exhibit 2?
THE PRESIDENT: I have that. Did I make an order receiving it?
DR. HAENSEL: I believe it was accepted.
THE PRESIDENT: Yes, exhibits 1 to 11 inclusive have already been received in evidence. You can start with exhibit 12.
DR. HAENSEL: Exhibit No. 12 is my document No. 17, document book No. 1.
THE PRESIDENT: Pardon the suggestion, I assume that the exhibits you have marked for identification you intend to offer in evidence?
DR. HAENSEL: Yes, yes I request that.
THE PRESIDENT: Could you make your offer a blanket offer covering them all, then we can hear the objections of the prosecution.
DR. HAENSEL: Yes, your Honor.
THE PRESIDENT: Do you offer them all?
DR. HAENSEL: If you like, yes.
THE PRESIDENT: The Tribunal did not express any ardent desire.
DR. HAENSEL: Yes, I do.
THE PRESIDENT: he will consider them offered, Mr. King and hear your objections if any.
MR. KING: In the first place I take it for granted we are not discussing exhibits 1 to 11, inclusive. We are further not discussing exhibit No. 14.
THE PRESIDENT: Suppose you just state the exhibits to which you have objections, all the rest will be received.
MR. KING: That is what I want to inquire about. There are certain exhibits that cannot be received for the reason they were not produced here, I want to be sure my records are straight.
THE PRESIDENT: The exhibits which are not produced you may reserve the right to object to when they are produced as to all of them, of course.
DR. HAENSEL: For the purpose of expediency I may say I have reserved, but not yet submitted, only reserved the numbers. No. 14 - Hattingen No. 21 - Hoeller; No. 34 - von Brauchitsch, No. 44 Gritzbach, No. 48 Kreisleiter and No. 53 - Gisevius. These still have to be translated.
THE PRESIDENT: Our notes on the bench confirm your statement.
MR. KING: Your Honor, I will explain a minor problem which is facing us and if the Bench is favorably inclined we may be able to eliminate a lot of time. The problem of this, some of these documents we find them objectionable because of the failure to conform with Rule 21. We think that a good argument could be made against the admission in evidence of some of these letters, some of these exhibits, however, for other reasons, among which is the contents of the documents themselves, we have no objection to the Court receiving them. However, by refusing to note our objection we do not wish to foreclose the right in the future to make an objection against the admission in evidence of documents with the same technical defects and if we could have the Courts assurance that will not be the case, I think we can dispense with a lot of explanation.
THE PRESIDENT: By failing to object or by refraining from objecting concerning the technical matter to which you have referred, the Tribunal does not consider that we would waive your right to make any objections which may be warranted in the future. We have already warned counsel repeatedly to read, consider and apply that rule.
MR. KING: I may say that there are two or three affidavits here included in this list that are given by individuals who are now in Nurnberg prison and while in these particular cases we are not going to object to the admission of the affidavit, that is one of the category of tech nical reasons which we feel in the future it may be necessary to object to.