May I ask the Tribunal to direct its attention to I, the first article of the law, and the second paragraph which begins with the words: "To the Defense Committee beong?" I refrain from reading the next words. In any case, the Reich Administration of Justice is lacking. No Reich Minister of Justice or any other person from the Ministry of Justice is mentioned. This document is supposed to be evidence to the affect that the administration of justice had no part in the practical administration within the meaning of the law in which it should have played a role normally in a state.
I do not have to say anything else about this law, and offer it as Exhibit #7, Klemm.
THE PRESIDENT: To exhibit is received.
DR. SCHILF: The next document is on page 19 to 24 of the document book. It is a further decree regarding the Reich Defense Commissar. This one of the year 1942. Here too I considered it appropriate to submit as a document not only the bare law, but again to also reprint an introduction from the commentary from the book Pfundtner-Neuberg which I have already mentioned. This is a commentary. This commentary is at the beginning of my document and I would like to ask the Tribunal to look at page 20 and direct its attention to the new regulations on that page. These regulations, which were introduced only as late as 1942, show the districts of the Reich Defense Commissar were delineated. It says there that all of these districts will be made the same as the Gaus of the Party, that is, the Gaus of the NSDAP. And now, I would like to quote a sentence:
"Accordingly, the Gauleiters, as carriers of political sovreignty, were named in each case, as Reich Defense Commissars."
In the next paragraph the task of the Reich Defense Commissar is explained and what the witness Dr. Lammers has already informed the Tribunal about is laid down here, that the Reich Defense Commissar, in the actual task of administration, after 1942 had the decisive word to say and had to be asked on practically all questions.
During the course of the war, his authority increased constantly. The necessity of the conduct of the war vecame more important and the Reich Defense Commissar was the liaison man between the Wohrmacht and the principal administration of the state.
I would like to mention one thing from this decree and that is sub-section 8. Sub-section 8 is on page 22 of the document book Corresponding to the first law which I have introduced, regarding the Reich Defense Commissar, this is now Klemm Exhibit #7. The so-called Reich Defense Committee was reorganized. The Reich Defense Committee was decreased. Less persons were admitted into it and here too is lacking any representative of the administration of justice. Sub-section 8, Paragraph 2, says:
"The following are members of the Defense Committee: The Reichsstatthalter, the Gauleiter ...." According to what I have already statedm that was the Reich Commissar himself, as a rule, and if that was not the case, the Gauleiter was included in the committee in any case.
The next person is the provincial president, that is the administrative authority of the Province in Prussia. Then dome the Minister Presidents; they are the chiefs of the administration of the German Laender. May I again point out to the Tribunal that they can still see them on the chart, and may I remind them what Jahrreis stated about this on the chart which is till here. We can see the provinces of the land Prussia, laender. Then a number of other people are enumerated, but in any case in the districts or provinces or laender there is not mentioned a president of the district court of appeal or a general public prosecutor. Both of these types of people were excluded from this committee of the Reich Defense Committe -- to work on it.
I offer this decree, with the explanation, as Exhibit, Klemm No. 8 -- with the commentaries as Exhibit No. 8.
THE PRESIDENT: The exhibit is received as No. 8.
DR. SCHILF: I now come to document book No. 11. First of all, and only for judicial notice, I have cited six quotations from the opinion of the IMT. I have combined these in one document book. I have called it the subject of the general defense No. 4. I believe that I have found out that in the English document book this is not contained. At least no in the copy which I received last night. If that should not have been corrected, may I point out I have called it No. 9 -- Exhibit No. 9, and it begins on page it and ends on page 9. In the German document book it is contained.
THE PRESIDENT: It is not in my book.
MR. LAFOLLETTE: It is not in mine either.
THE PRESIDENT: However you needn't be disturbed if it is a copy from the IMT judgment, because our rules require us to take notice of that judgment, and we will do so.
MR. LAFOLLETTE:If your Honor please, the Prosecution would like to be advised which part the defense considers significant; while I shall raise no objections now, I would like some arrangement to supplying me with a copy of this.
I have no objection to it being introduced.
DR. SCHILF: In the index I have listed the six quotations. I have listed the page numbers of the six quotations, but I would like to say the following: I have not quoted according to the transcript of the IMT, but I have quoted from the official report or record which was published recently by the editor of the record", of Volume 1, which was published here in the court house by an official commission. As far as I have been informed, the page of the English text are the same as those of the German text. However, I am not certain about this. There for, only very briefly want to state the individual subjects which I have quoted here. On page 198 of this newly published official record the Hohenstein case is mentioned. The Hohenstein case is very significant here. I only want to submit for judicial notice of the Tribunal what the IMT decided about this case. The second quotation I consider important because it concerns the subject which Professor Jahreis discussed here. The IMT in regard to the subject which Dr. Jahreis also discussed held that the so-called Fuehrer Decree was a law in the constitutional structure of the Third Reich -- a law that was binding on all. The International Tribunal did not hand down an express decision about this, but limited its decision to the Hitler decree. As far as the Defense is concerned, we here have made efforts to work out a distinction between the order and the Fuehrer decree as a legislative act, and I do not want to argue about it. I only want to argue about it. I only want to say that Professor Jahreis treated that subject very extensively.
The third quotation, on page 293, concerns the question which is important for our case--as to whether the administration of justice participated in the illegal lynchings of shot-down or parachuted allied fliers.
The IMT at the time decided that only party offices could have been responsible for this. It said that a program had been made up by Bormann, had been propagandized by Goebbels, had been promoted by Goebbels, and that as a consequence of this program by Bormann, a number of lynchings had occured, but it did not look as though this had happened all over Germany. Nevertheless the existance of this circular memorandum by Bormann proves that the corps of political leaders is responsible. As defense counsel of Klemm, I attach particular importance to that indication by the International Military Tribunal because there they did not establish that the agencies of the Administration of Justice had anything to do with these matters.
The next quotation is on page 318 of the office record. It concerns the sentence gainst Hess. It is important for my client Klemm because the party chancellery played a part here.
The next quotation, page 380 and the following pages, concerns the opinion of the sentence of the IMT against Fritsche. Fritsche was examined here as a witness for the general defense, especially also in regard to the question of lynching of allied fliers. To inform the Tribunal about the person of Fritsche, I introduced this entire paragraph in my document book.
The last quotation concerns Bormann, and it is laid down that the responsibility for the lynching of allied fliers was Bormann's, who, as Reichsleiter, had issued this well known memorandum.
May it please the Tribunal, these are the passages which I wanted to introduce for judicial notice from the IMT judgment. I offer this compilation as Exhibit No. 9
THE PRESIDENT: The Tribunal takes judicial notice of the IMT and of these portions of it.
MR. LAFOLLETTE: I simply want to reiterate my previous remark that I hope in some manner that counsel will be supplied with these in English so that I may have an accurate quotation of them.
DR. SCHILF: At the moment I cannot find out what was the cause for the fact that pages 1 to 9 are missing in the English document books. May I express my astonishment at the situation. After all the judgment has been officially translated. Perhaps the translators arc looking for the official translation and couldn't find it.
DR. SCHILF: The next document, which I intend to introduce, is an excerpt from a collection of documents which was published in 1940. This collection of documents is called "the Documents of German Politics". Page 10 of my document book 2 contains the complete titles from that. The Tribunal can see that it is a semi-official collection of documents. This excerpt concerns the question as to how the German people at the time were told about the constitutional changes in Czecho Slovakia. I here would also like to refer to the witness Fritsche. In order to underline his testimony I have included here the agreement of 15 March 1939 between the Fuehrer and the president of Czecho Slovakia, Dr. Hacha. This document appeared everywhere as the basis for the establishment of the so-called Protectorate.
In this excerpt and this document, it is interesting to note that Dr. Hacha, as well as the then Czecho-Slovakian foreign minister Dr. Chvalkovsky, on the basis of this agreement treaty of 15 March 1939 made a public statement and that was an affirmative statement. I also took these affirmative statements from the Documents of German Politics. These statements are in the appendix to my documents.
The second part of this document begins on page 12. I might say that the collection of documents contains a detailed description of how the two representatives of their states, Hitler for Germany and Hacha for Czecho-Slovakia, made a cordial agreement pact and proceeded. The second part of this document, which also plays an important part as to how the whole affair was described to the German people and what the German people knew about the establishment of the so-called Protectorate at the time, is a declaration by von Neurath, who was appointed Reich-Protector. Neurath is well known. He was before the I.M.T. as a defendant. At that time, immediately after the agreement was concluded, in the well known journal "the Europaeische Revue", von Neurath published an article 1939. The Tribunal will find the enclosure on page 12 of the document and that contains also a further statement by Dr. Hacha about the newly established relationship between the German Reich and Bohemia and Moravia.
These statements by von Neurath are not given in their entirety, but they are significant of what was said also from that quarter, not only by Hitler, but by the foreign minister of the Reich about the aims of the German policy and above all that it was said that the Czechs not only in regard to nationality, but in regard to culture would be granted complete autonomy. These two important statements, the agreement and Neurath's declaration formed the basis of the information which was given to the German people about that relationship.
May I ask the Tribunal to accept this document as Exhibit 10?
THE PRESIDENT: Exhibit what?
DR. SCHILF: Exhibit 10.
THE PRESIDENT: It is received.
DR. SCHILF: On page 14 of the document bock II through 15 there is a decree regarding the Eastern Territories, that is the territory which was incorporated into the German Reich after the campaign in Poland. That is a supplement of the law that was introduced already in the Schlegelberger document book. I will refrain from explaining this law in detail, but it concerns the position of the Reichsstatthalter (Reich Governor) in the Eastern territory.
I offer this document as Exhibit 11.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document on page 16 of the document book, page 16 to 21, concerns the administration of penal law against the Poles and Jews in the incorporated Eastern territory. That too is a supplement to the documents submitted by the Prosecution as well as the Defense, regarding the legal position of the Jews and Poles in the so-called Eastern Territories. These are the decrees of it September 1941. Here again I introduce parts of the Ministerial commentary from the Pfundtner-Neubert book, which elucidates the law.
I think it better than the plain reporting the law.
I offer this document as Exhibit 12.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: In connection with the document, which I have just introduced, I introduce the next one which is the executive order regarding Poland, that is to say the regulation for the execution of penalty. Here is explained what many witnesses have already stated that the prison term for Poles according to this decree did not longer mean a penitentiary, but a penal labor camp. This is explained in a socalled general decree by the Reich Minister of Justice of 7 January 1942. The document speaks for itself and I do not have to speak more about it.
I offer this document as Exhibit 13.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document is an affidavit, which concerns not only my client Dr. Klemm, but the number which are listed on the top of page 22, that is to say the general Defense. It also concerns the same subject 3 - subject 3 was designated in the opening statement as the relationship of the Administration of Justice to be police. Dr. Kuehn, formerly working in the Reich Ministry of Justice in department 4 relates an incident in which a man was denounced in Berlin because he had alleged - and that was supposed to have happened in 1942 or 1943 - that the Jews were being killed by gas in the East. The Administration of Justice went into this matter because the man was upposed to be prosecuted. It was very important for the Administration of Justice whether his allegation was correct. The affiant Dr. Kuehn states here that at the time he himself reported the case to Klemm, my present client, he then describes how Klemm reacted upon this report, and finally he states that he addressed an inquiry to the official office which had to know about that, which was the Gestapo Office. That was an inquiry of one Ministry to another govern ment office, and that the State Police Office at that time rejected the allegation as being absolutely untrue.
This is one of many exhibits which have been submitted which show that the Gestapo if any other Government agency wanted to know anything made an official denial and that at that time the people in Germany still believed that official information was true.
May I in this connection also refer to the Fritsche testimony and I offer this affidavit as Exhibit 14.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document on page 24 in the document book is in close connection with the proceeding document. It is a secret memorandum by the R.S.H.A. to the office of the Gestapo in Duesseldorf of 21 July 1943. The document was submitted to the I.M.T. and bore at that time the No. 1063-PS. The document speaks for itself. The Main Office of the Security Police at that time directed all Gestapo offices not to admit anyone into the labor camps, especially no representatives of the press or of the Labor Front. The original of this document has been given to the General Secretary of the I.M.T.
I have a certified copy here and offer this document as Exhibit No. 15.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next is a police directive and the interesting thing about this is the date. On the 19 June 1944 there appeared in the Reich Law Gazette a police directive. This police directive was signed by Himmler and contained a detailed regulation to the effect that Eastern male and female labors - those as a rule were Poles and Ukranians who were from the Eastern parts of Europe, working in Germany were supposed to be paid. This directive states that the Eastern workers had proved by their attitude and efforts and their behavior that they wanted to cooperate against the Jewish-Bolshewist world danger. And they received a kind of medal for merits as an external sign of acknowledgment.
This document is significent from Fritsche's testimony to which it is a supplement, because it indicates how the Eastern territory appeared to the German public. I have already referred to the date.
I offer this document as Exhibit 16.
THE PRESIDENT: The Exhibit is received.
DR. SCHILF: May it please the Tribunal, in order not to disturb the logical structure, I ask to reserve for me as Exhibit 16-A, an affidavit by Dr. Heinz Kuemmerlein of the 3 of July 1947. Unfortunately, this affidavit has not been translated, but I would like to have it reserved as 16-A, and would like to submit it that way to the Tribunal and would like to have a decision about it, whether it will be reserved after it has been translated as Exhibit 16-A.
THE PRESIDENT: We will reserve that number for your affidavit.
DR. SCHILF: May it please the Tribunal may I point out to you that Mr. Lafollette has just called to my attention that the English copy of this affidavit of the 3rd of July 1947 has already been submitted as a document and could actually be received now. I have not received it in the German document book yet.
THE PRESIDENT: What book is it?
MR. LAFOLLETTE: It is supplement 2, your Honor, and when I was constructing my book I put it in the back of the book 2. I think that is the same one Dr. Schilf refers to.
THE PRESIDENT: We have not received it yet, have we?
MR. LAFOLLETTE: I think you have. I received yesterday supplement Klemm 2.
THE PRESIDENT: We have before us document books 1 and 2. You are not referring to either of them?
MR. LAFOLLETTE: This appears in supplement 2, which I received yesterday afternoon.
THE PRESIDENT: When we receive it we will mark it 16-A.
DR. SHILF: The Dr. Kuemmerlein affidavit ........
THE PRESIDENT: That is the affidavit to which you refer to be received in evidence?
DR. SCHILF: May I only say in order to describe it that this affidavit is concerned with the question of a liaison office of the ministry to the affiliated organizations of the Party, that is also to the SA.
This is a subject which was already discussed when the witness Klemm described it here.
May it please the Tribunal, I now come to document book No. 3. The first document is a purely theoretical matter. It concerns the general subject of the defense and that has been indicated in the document book. The document beings on page 4. It is rather extensive and it ends on page 12.
THE PRESIDENT: Just a moment, I did not understand. This is document book 3.
DR. SCHILF: Document book 3, page 4.
THE PRESIDENT: Well, the book itself has pages 1 to 5 only.
MR. LAFOLLETTE: That is the supplement.
DR. SCHILF: These are three articles from a legal journal, the first article begins -
THE PRESIDENT: Just a moment. You are going into book 3, not 3 supplement. We haven't it yet, book 3.
DR. SCHILF: No, the main book No. 3.
MR. LAFOLLETTE: Your Honors, perhaps you might have it. That book has been distributed to the Tribunal. I have had it for ten days, I wonder if it is not in your room. I have had book 3 for ten days.
THE PRESIDENT: I inquired of Dr. Schilf and he said he had not introduced any documents. Here they are.
MR. LAFOLLETTE: I meant the book, Your Honor.
THE PRESIDENT: We have them now. You may proceed with book 3. Start over again please.
DR. SCHILF: If I may ask the Tribunal to look at the index of Book #3 first. First of all there are reprinted three articles from a legal journal. On the left side I wrote down the subject of the general defense that they refer to. They are articles from 1933 which concern themselves with a number of legal dogmatic questions. These three articles may be a rebuttal against the expert witness of the Prosecution, Dr. Behl.
Dr. Behl had discussed theoretical questions and bad claimed the fact that typically Nazi institutions in the course of the years from 1933 had formed even in the administration of justice, and these three articles are supposed, the first one, of which is "Crisis in Criminal Law and it's overcoming in the Concept of the State", it is page 4, document book 3 and appeared in 1933 and they are supposed to establish that already a long time before 1933, the questions which were clarified by means of law only after 1933 were problems for decades. The statistical description which is contained in this article is very interesting. The second article is interesting in regard to the question of the so-called nullity plea. This article begins on page 6. Perhaps the Tribunal will direct it's particular attention to it because it concerns the problem of ne bis in idem, as it is represented in the American Federal and State legislation and jurisdiction from the German point of view. This article also is from 1933. May I remind the Tribunal that the principle of ne bis in idem was discussed by the expert of the Prosecution, Behl, as well as by several other witnesses as for example Dr. Escher. The third article from this journal concerns - in my book it is on page 10-a, an article by Professor Exner on the bottom of page 10 of the English document. Professor Exner was mentioned here when the expert Dr. Jareis pointed out that Exner as early as 1925, about that time with the aid of his students had made a criminological study about professional criminals and similar subjects. It is an article by Exner which is given here in a summary form and this article demonstrates that already long before 1933 the problem of the right against habitual and professional criminals was a pertinent problem already at that time. This is also a rebuttal of Behl who said that the habitual criminal is a typical Nazi discovery and this proves the contrary.
Your Honor, I offer these three articles as Exhibit No. 17.
THE PRESIDENT: The Exhibit is received.
DR. SCHILF: Since the question of ne bis in idem was of great significance here, I permitted myself to include a completely new judgment in ay document book.
It is a judgment of the 24 of January 1947 of the District Court of Appeals of Dresden. That is in the Rusian zone, and this judgment is re-printed from a journal which is now called "Neue Justiz". It is published by the German Central Administration of the Soviet Occupation Zone. I consider this judgment so interesting regarding also the question of the problem of ne bis in idem, that I here want to submit it as Document No. 18, to the Tribunal. I am offering it as No. 18.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next document, or rather, the next three documents, Your Honor, again concern the Hohenstein case. I may remind you of the fact that in 1934-1935 my client Klemm--and these documents concern him only -- was working in the Saxon Ministry of Justice. Hohenstein is in Saxony, near Dresden.
These three documents were submitted to the IMT: and were there given the numbers 383-PS, 784-PS, and 787-PS.
THE PRESIDENT: We will recess for 15 minutes.
(A recess was taken)
THE MARSHAL: Persons in the courtroom will please find their seats.
The Tribunal is again in session.
DR. SCHILF: May it please the Court, Document Book III, Page 15 and 16 contain the first document about the Hohenstein Case. This document was introduced before the IMT December 8, 1943, designated as 783-PS. The original was sent to the Secretary-General of the IMT. At that time Guertner, as the Reich Minister of Justice, in January, 1935 wrote to Tothman telling him that he was not entitled to interfere with the proceedings. On page 15 of the Document Book a law is quoted. It is dated the 20 March 1934, according to which the clemency right, since the Administration of Justice had been transferred to the Reich now was exercised by Hitler, the head of the State. I shall introduce that law later on in a later document book. For the rest, this document speaks for itself. I offer it as Exhibit 19.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The next, on Page 17 up to Page 20, is a letter again from the Reich Minister of Justice -- it was Guertner at that time -- dated 5 June 193-5, addressed to Reich Minister Hess, the Fuehrer's deputy. That too was introduced before the IMT and I quote the number at the top of the page. It is again concerned with the Hohenstein case and Guertner is against granting clemency to the persons who are listed in this document, some of whom had been sentenced to long prison term.
The second part of this document on Page 20-A of the Document Book is a letter to Chief of Staff of the SA. It begins on Page 20-A and ends on Page 21-A, Again it is a letter from Dr. Guertner to Chief of the SA-
THE PRESIDENT: We don't have it. Our document book runs from Page 20 to 21.
This, unfortunately, is in German.
DR. SCHILF: May it please the Court, in the English Document Book it is at the bottom of Page 20.
THE PRESIDENT: We have no Page 20-A
DR. SCHILF: Would you forgive me, please? 20-A was the paging in the German Document. I see now that in the English document there is no subdivision of the pages. This is the second part of the document. May I repeat, it is a letter to the Chief of Staff of the SA in which Dr. Guertner again points out that clemency could not be exercised in the case of these persons. May I point out to the Tribunal that Klemm at the time was the liaison man with the SA and that it was he who granted to have those SA men punished. This document I offer as Exhibit 20.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: The third document in this series concerning the Hohenstein case is on Page 22 of this document book and it continues through to Page 25. Again it is allettor from Guertner, dated 18 June 1935. It is addressed to the Fuehrer and Reich Chancellor, that is to say, to the final clemency authority, the head of the state. Again Guertner states that the people who had committed brutalities at Hohenstein were not to have clemency granted in their cases.
Details are evident from the document itself. I offer this exhibit as Exhibit 21.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: I am now coming to a document where I suspect difficulties will arise an affidavit by Hecker. This affidavit appears on Pages 26 to 29 of this document book. Hecker, in this affidavit, recounts how he together with Klemm, on account of at Papenburg camp, went into action. Hecker told the essential details here on the witness stand.
His affidavit goes into further details and on account of these details I am asking the Tribunal to receive this affidavit. Hecker wrote it on the 5 June 1947, that is to say, before he was examined on the witness stand here.
MR. LAFOLLETTE: I am forced to object to this, your Honor, for the reason that I did not have the affidavit when Hecker took the stand. Had I had it I would not object. I think that under these circumstances I had no right to cross examine Hecker on the basis of his affidavit, which was the policy adopted when the Prosecution presented affidavits and witnesses.
THE PRESIDENT: The rule of the Tribunal was announced. Hecker has been examined in open court and the offer of Exhibit 22 is rejected. Counsel has had full opportunity to examine him here.
DR. SCHILF: The next document is on page 30 of this document book, It is the law which has often been mentioned here and it is known under the name "lex van der Lubbe." It is dated 29 March 1933. In contrast to the former state of affairs where that type of execution had not yet been law. This law introduced the execution of the death sentence by hanging. Here again I have quoted from the Ministerial Commentary. In a note there appears an index of the various forms of execution; also in comparison with other countries I offer this exhibit as No. 23.
THE PRESIDENT: The exhibit is received.
MR. LAFOLLETTE: If your Honors please, unless the Court desires to have a break in its exhibits, it just struck me that it might be more appropriate to offer this as Exhibit 22. 21 was the last one accepted.
THE PRESIDENT: I think we will leave 21 in as offered and reject 22.
MR. LAFOLLETTE: Exhibit 22 is in.
THE PRESIDENT: 22 as offered and rejected because counsel has not adopted any document numbers and i apparently using his exhibit numbers also as document numbers. This will be Exhibit 23 and we will bear in mind the fact.
DR. SCHILF: The next document is a summary. It is on Page 32 of this document book. It is summary and it continues through to Page 50. It is summary of all laws of the control counsel in Germany and of the Military government in Germany since the surrender of the German troops. This compilation I am offering in order to give the Tribunal a summary of the cases the occupying power in Germany, that is to say, the governing authority of the military government and the power here in the American Zone deemed it necessary to threaten the death sentence.