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.
THE PRESIDENT: The Tribunal has already expressed its view on that matter several times
MR. KING: I wonder if I could ask the Court to turn to Exhibit 40, which is Joel's Document No. 66, to be found on page 66 in Document Book III. The Prosecution is somewhat embarrassed in objecting to the admission of this document because its content is such that we feel it probably adds little weight to the evidence. However, it is the type of a document, a letter, which contains no preamble.
THE PRESIDENT: Are you objecting to the letter which is the first page of Document 66?
MR. KING: I am objecting to the letter and to the affidavit which accompanies the letter. The affidavit has no preamble and is really a part of the letter. It is true that it has been certified by a notary public, but that is the only sense in which it complies with the rule. There are two or three documents in the group that are perhaps even in the same category. This is probably the worst.
THE PRESIDENT: You are objecting to the entire Document No. 66?
MR. KING: That is right.
DR. HAENSEL: May I say something about that. The document, as well as the letter, shows -- which is on page 66 -- that it was received by me in the same way that I reproduced it. It is a letter which especially due to its directness, in my Opinion, has a certain value, and I could not influence the formal writing up of it.
THE PRESIDENT: The objection is sustained. That is Exhibit 40.
MR. KING: In view of what we have already said, and the Court's response, we are not going to make any more objections. And, therefore, with the exception of 40 and those to be supplied, we have no objections, and I take it that they are to be admitted.
THE PRESIDENT: The exhibits, commencing with Exhibits, marked for identification, 12 and continuing through Exhibit 53, inclusive, are all received except Exhibit 40, and except those which the record shows have not yet been offered physically in the court, the last one of which is marked for identification Exhibit 53.
Have you any further testimony to offer in behalf of the defendant Joel?
DR. HAENSEL: I request to reserve the right to call lawyer Schulz from Ueberlingen at a later time. I had summoned him; he has a knee injury and so far he was unable to travel.
THE PRESIDENT: We will consider the matter when you are ready to present him.
DR. HAENSEL: In that case I have to submit no further evidence, with the reservation of that witness and the documents I still have to submit.
THE PRESIDENT: Gentlemen, bring your document books in the morning. We will recess until that time.
(The Tribunal adjourned until 7 August, 1947, at 0930 hours.)
Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 7 August 1947, 0930-160, 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: 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 defendants Engert and Barnickel who are absent due to illness.
THE PRESIDENT: The defendants have been temporarily excused. Let the notation be made. Are we ready to proceed with the introduction of document books this morning?
MR. LAFOLLETTE: If your Honors please, before Dr. Schilf begins I would like to take care of two matters in connection with the Prosecution's Exhibits. Exhibit 539, NG602, there has been distribution and delivery to the SecretaryGeneral. There simply has never been a formal offer. Right now I offer in evidence Prosecution's Exhibit 539.
THE PRESIDENT: Has the Tribunal received copies?
MR. LAFOLLETTE: Yes, your Honor.
THE SECRETARY-GENERAL: Yes, sir, they were distributed
THE PRESIDENT: I know the Secretary-General has received them. Have we received them here?
THE SECRETARY-GENERAL: Yes, sir.
THE PRESIDENT: The exhibit is received.
MR. LAFOLLETTE: The next Exhibit 536 which is NG-1966. That is in connection with the cross-examination of the defen dant Rothenberger.
Within just a minute I will have the exhibit and copies for distribution in the room. I would like to offer that exhibit in evidence.
THE PRESIDENT: The exhibit is received. What was the number, Mr. LaFollette, of the last exhibit you offered?
MR. LAFOLLETTE: Exhibit 536 which has been marked for identification as Document NG-1966. That consists, your Honor, of two letters, one from Adjutant Albrecht to the Defendant Rothenberger and one from the Defendant Rothenberger to Adjutant Albrecht.
DR. SCHILF: Schilf for the Defendant Klemm. May it please the Tribunal, I am submitting nine document books, but before I do so, I would like to state that the majority of the documents are concerned with the so-called general defense, Perhaps the Tribunal would be so kind to recall that the general defense, in its opening statement at the end submitted a list which names the subjects -- they amounted to 20 altogether -- which wore characterized as subjects of the general defense.
In compiling my document books I gave a special number to those documents which do not concern my client and I call them GV. That is supposed to mean General Defense Generalverteidigung - and I have added the number which can be seen from the supplement to the opening statement. Thus, on the first page of every document there is this mark which indicates which subject of the General Defense it concerns.
Document Book No. I is concerned with the constitutional laws. I have designated them as GV-1 in order to make that clear, and those laws which I shall now refer to, Professor Jahreis too, when he testified here, always referred to.
So that the Tribunal will be in a position to examine the testimony by Professor Jahreis by referring to the documents which he quoted.
Therefore, I am now submitting those following documents: No. 1 is the Law for Alleviating the Need of the People and the Reich, of the 24 March 1933. Professor Jahreis, at the time, stated that this was the beginning of a final dictatorial constitutional power since the so-called Praesidialkabinette had already created this. I am not going to read anything, your Honors. I am offering it as Exhibit 1. It is the frequently-mentioned law of the 24 March 1933.
THE PRESIDENT: May I ask to refresh my memory? You have not offered, in the name of Klemm, any previous exhibits, have you?
DR. SCHILF: So far I have not submitted any exhibits for Klemm. This, therefore, is No. 1.
The second law in this document book on Page 5 of the Document Book is the law regarding the Head of the State of the German Reich of the 1 August 1934. Here, too, I would like to ask the Tribunal to recall that Professor Jahreis spoke about the unification of the office of the Reich President and the Reich Chancellor. This law was promulgated shortly before the death of the then Reich President, von Hindenburg, by the Reich government, not by the Reichstag. I offer this law of the 1 August 1934 as Exhibit 2 Klemm.
THE PRESIDENT: Those exhibits are received.
DR. SCHILF: The next document is on Page 9 of the Document Book. It is again a law -- I beg your pardon. The next document is not a law but a decision by the Reich government to bring about a plebiscite of the 2 August 1934.
It has an immediate connection with the preceding document which now has been designated as Exhibit 2. It is the execution of this law of the Reich government about the plebiscite that was decided upon. To that extent again it is a question which Dr. Jahreis discussed here. This decision by the Reich government was published in the Reichsgesetzblatt - Reich Law Gazette - and, therefore, also had force of law. It is on Page 7 of the Document Book and I offer it as exhibit No. 3.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document is a law regarding the administration of the oath to civil servants and soldiers of the Wehrmacht of the 20th of August, 1943. It is on page 9 of the document book. This law was also introdiced in connection with the statement by Professor Johress. From the point of view of time, it is also connected with the two proceedings exhibits, namely, the law of the 1st of August, and the decision of the 2nd of August, regarding the plebiscite of the 19th of August. Immediately on the next day in the Reich Law Gazette, this law about the administration of the oath appeared because Hitler attached importance to having all soldiers and civil servants take the oath of loyalty to him.
May it please the Tribunal, may I make a remark? On the Schlegelberger document Book #1, on page 39, there is printed, and I believe accepted as an exhibit, the result of the plebiscite which was held due to a decision of the Reich Government in August, 1934, and the exact figures that resulted from the plebiscite are given in this exhibit.
I offer this as exhibit 4, Your Honors.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document is in Document Book 11. It is a...
THE PRESIDENT: (Interrupting): You mean, it is page 11, Document Book 1? Page 11?
DR. SCHILF: On page 11 of the document book. A decree of the Fuehrer regarding the formation of a Ministerial Council for the Defense of the Reich. Here I did not only submit and I am not only introducing the law as it is printed in the Reich Law Gazette, but I considered it appropriate also to introduce a brief commentary, and I may call it an official commentary. The commentary is from a book which is very well known in Germany - "Pfundtner-Neubert". Pfundtner-Neubert on page 11 it says, at the beginning of the document.
This book is a collection of the entire Reich Legislation since 1933. The commentaries were, as a rule, made by the referents of the ministries. Therefore, it was ascribed as a ministerial commentary. This commentary facilitates the understanding of this law. May I call the attention of the Tribunal to the word "introduction". In this introduction, in a few words, is summarized the historical development about which Professor Jahrreis here made very illuminating, statements. The law is of the 30th of August, 1939, one day before the outbreak of the war, and contains the possibility to simplify the legislation even more. Until 1933, on principle, the Reichstag was the legislative organ and, through the so-called enabling acts, the Reich Government the bearer of the legislative power and through this law of the 30th of August, 1939, a committee of the Reich Government was appointed and this was given the name of the Ministerial Council for the defense of the Reich. This counsel had the authority to issue so-called decrees that had the force of law.
May I also point out to the Tribunal, Article 1, Paragraph 2, where the individual members of the Ministerial Council for the Defense of the Reich are listed? The most important for us here in this trial, for the entire administration of Justice, is the official named in third place who had the title of plenipotentiary general for the Reich Administration.
From the law and from the commentary it can be seen what extensive consequences later on this simplified method of legislation had. It is noticeable that the Reich Minister of Justice was not named among the persons who I just named. Thus, he did not belong to the closer Ministerial Council for the Defense of the Reich.
I offer this document as Exhibit 5.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document is again a decree from the Reich Law Gazette. Here, this is the first document which concerns my client Klemm, but not only him, but it is also important for the development of the administration of justice because, for the first time, the Reich Defense Commissar is mentioned here.
The Reich Defense Commissar played a role in the examination of Klemm and in the entire case because, in the Sonnenburg Case, the Reich Defense Commissar played a special role. The excerpts which I quote from the law of 1 September 1939 show clearly what significant functions this Reich Defense Commissar had.
May I direct the attention of the Tribunal to the fact that this law was promulgated after the previous decree of Exhibit 5 of the 30th of August, 1939?
To that extent, it is a supplement to the law of the 30th of August, 1939. I do not want to recite anything else from this law, it speaks for itself, and I offer it as Exhibit #6.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The law is on page 15 or 16 of the document book. It is signed by Goering and by Dr. Lammers. Dr. Lammers was the witness who testified here.
The next document in Document Book 1, page 17 to 18, is, I would like to say, a combination of the two proceeding laws, namely the law about the appointment of a Ministerial Council, and secondly, about the appointment of Reich Defense Commissars, because here we are concerned about the order of the Ministerial Council for the Defense of the Reich for the execution of the decree for the appointment of Reich Defense Commissars. The Ministerial Council here had taken over the more detailed regulation for the Reich Defense Commissar. The law is dated 22 September 1939. Significant with this law again is the fact that the administration of Justice, in the committees which were assigned to the Reich Defense Commissar, was not represented at all.