Q. What was Doebig's attitude to Friedrich's wishes?
A. I believe I have already answered that question, he was in favor of cooperation.
BY THE PRESIDENT:
Q.- May I interrupt. May I ask you a question. It wasn't entirely clear what you meant in your testimony. You suggested that investigations on a lower level should take place before the higher level. Investigations of what -- what kind of matters?
A.- Investigations is not the word I meant to say. I wanted to say that by negotiations -matters which concerned the administration of justice were to be settled on a lower level.
Q.- What kind of matters -- which concerned the administration of justice?
A.- What we had in mind was attacks which within the sphere of the party were made against the administration of justice. I can illustrate that by an example.
Q.- It is not necessary now. No, I understood you to act under this suggestion as an intermediary. Was that your word?
A.- That I was to become the intermediary?
Q.- Yes, between what parties or what groups?
A.- Between the SD and the administration of justice.
Q.- Yes. And then you said since these matters are all matters to be dealt with by me afterwards, it was reasonable that you should be the intermediary. Did you refer to legal matters?
A.- That concerned matters -- cases which might be brought before me or which ware already pending before me. Matters in which those agencies were interested for reasons of criminological developments, but they were not interested in the individual case as such, in its treatment, or in the decision.
Q.- And what was the lower level where the matters were to be first discussed?
A.- The main difficulties which arose and which gave cause to discuss this matter at all were made from up above -- from a higher level. A report was made on some occurrence or other to the SD; the SD passed the matter on to Berlin; from there it was passed on as a rule without having been settled or even examined to the press where it caused a great deal of sensation.
Q.- Was this lower level, to which you refer, the local representatives of the SD?
A.- Yes, naturally.
THE PRESIDENT: Go ahead.
BY DR. KOESSL:
Q.- Now, witness, tell us please, what was to be prevented by the discussions, the report to the higher level; what was it -- was it that things were to be clarified after the higher level had dealt with it?
A.- One cannot state all that in one reply in such a general way. With these questions it always depended on what the individual case was like; what the attending circumstances of the individual case was like; and it depended upon what the aims and object of the participants were, Without going into the matter of the individual case, it is impossible to give an objective answer.
Q.- The witness Doebig said, English Transcript page 1766 "it was only a great deal later when I had left Nurnberg that I heard for certain that Rothaug worked in the SD." Later, English transcript page 1865 to 1866, Doebig stated: He remembered that the SD Leaders Friedrich and Elkar made him a visit, but that he could not remember the subject which was discussed. Anyhow, he had never given an inference that the administration of justice would cooperate with the SD. That position did Doebig take?
A.- I have already answered that question when I said that Doebig was altogether in favor of settling matters in that way.
Q.- How often would Elkar call on you in the subsequent periods?
A.- He said on Saturdays, and that makes it sound as if he had come every Saturday, but that is quite out of the question. He came on some Saturdays, but sometimes weeks passed, or months, until he came to see me again about some matter or other.
As was the case with many other things that were organized within the sphere of the party, they dragged on and finally nothing much was done.
Q.- What did Elkar tell you during these discussions about the functions of the SD, regarding the state of the party?
A.- He told me, and I think that was probably right, that the SD as we saw it was an institution of the nature of an official agency; that is to say, it was an organization of the police type; its activities and functions can best be described as an agency that gathered the opinions of the people; one intended to find out what the people really thought on official measures taken by the government, that is to say what they thought about laws, about judgments, about other administrative measures, etc. Those reports were then to be evaluated and passed on to the competent supreme Reich authorities to enable them in their governmental transactions and measures, to remain aware of the thoughts of the people. In all these reports, therefore, what mattered was not to find out who the people were who were critical and undesirable, but, on the contrary, the intention was to find out what people were really thinking; and therefore, it was undesirable and prohibited, to prosecute in any way an individual who stated his opinion in this connection. That was roughly the scope of the functions of the SD.
Q.- In the English transcript at page 2912, the witness Elkar mentioned the official character of the SD. I am showing you a book, and would ask you to tell the Tribunal what the title is.
A.- The book is entitled Ministerial Gazette Ministerialblatt; it was issued by the Reich Minister of the Interior; it was oublished in 1938.
Q.- Please turn to page 1906. At the right hand corner you will find a circular decree by the Reichleaser SS and Chief of the German Police at the Reich Ministry of the Interior, dated 11 November, 1938.
Please read out Section 1 of that circular decree.
A.- Under the leading Police Administration, it says collaboration of the authorities of the administration with the SD was the subject of the Reichsfuehrer SS (SD) circular decree by the Reich Ministry of Interior, dated 11 November, 1938. Then, there is a file note. Then ---one: The SD of the Reichsfuehrer SS (SD), as information organization, intelligence organization for party and state, has to work in particular in support of the security police, and has to fulfill Important duties. The SD thereby acts on the instructions of the state. That necessitates close understanding and cooperation between the SD and t e authorities of the general and internal administration. In reply to inquiries by the SD, information has to be imparted therefore to the same extent as if such inquiries had come from a government authority. The official agencies of the SD, in the same way, are under obligation to reply to inquiries of the general and internal administrations.
THE PRESIDENT: It is necessary to recess at this time, until 1:30.
(A recess was taken until 1330 hours, 12 August, 1947.)
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 12 August 1947)
THE MARSHAL: The Tribunal is again in session.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION - Continued
DR. KOESSL: May I continue?
BY DR. KOESSL:
Q.- Witness, what were the motives for which you met with Elkar and discussed matters with him?
A.- The main cause was that he knew me from his former training period.
Q.- You may continue.
A.- I said Elkar knew me since the time when he was in training, because he was assigned to me. He was by nature a very faithful person, and at the time when he was not yet with the SD, I was connected with him by purely human relationships. That is how it came about that at that time, after the had taken up service with the SD and a connection with the Administration of Justice and the SD was sought, he came to me first, for I was known to him; and that is how, in the subsequent period, the entire relationship was purely a matter of comradeship. This is shown best, perhaps, by the fact that one day Elkar informed me that he would probably be transferred to the RSHA in Berlin for further training. Thereupon I told him that in that case I would also discontinue my activity because I would not start all over again with a new man.
Q.- What descriptions did Elkar give you about the further handling of the SD reports in Berlin?
A.- He said that the information which I gave him -- which was usually an opinion on problems which were connected with the collection of comments from the people -- he would incorporate into his reports. These reports would then, in Berlin, be divided according to whichever parti cipating Reich agency was interested and nut at the disposal of those offices.
Q.- Did you have an insight into questions and tasks which were outside of the Administration of Justice?
A.- I did not gain any insight into those questions.
Q.- Did Elkar tell you anything about the activity of the SD Einsatzgruppen in the East?
A.- No, I only found out about that now.
Q.- Did Elkar speak to you about the so-called final solution of the Jewish problem by extermination, execution, or gassing?
A.- No word was ever spoken about this. I do not believe that Ellar was informed about matters of that kind either.
Q.- Did Elkar tell you about individual SD Fuehrers being entrusted with special tasks, as, for instance, the feigned attack on the Gleiwitz radio station, or similar undertakings, which were the subject of the IMT Trial?
A.- Matters of that kind were not discussed among us. The examples you have cited became known to me only here in Nurnberg in the course of this trial.
Q.- What was the basic line of your conversations with Elkar, or the basic topic?
A.- As I have already stated, the conversations were mainly on problems which were raised by opinions which were gathered from the population. That then led to problems of a general nature, for example, the general development of war-time criminality in one field or another.
In general, that was the direction in which our conversations developed and that was also the aim of such conversations.
Q.- Could everything be said in such conversations without restrictions?
A.- I believe that that was the only possibility at that time in Germany where a person could say exactly what he was thinking; and the reason for that is because, in this connection, in particular, only the truth was at stake for they were interested in finding out what the population was actually thinking in regard to certain events, measures, laws, speeches, judgments, etc.
Q.- Do you know in what form these reports were forwarded?
A.- That is not known to me; I never read such a report.
Q.- According to Elkar's testimony -- English transcript page 2E?0 -- you directed your attention to the development of criminal and penal proceedings. What ideas did you represent?
A.- I believe I have already stated my position on that question. I do not remember a great deal in detail regarding what was discussed at that time. One question, for example, which interested us and which demonstrates how we came to speak about these matters and what opinion we represented is the question which was frequently discussed in this trial, and that is the contact of the prosecution during the trial with the court because of the application for penalty. Opinions from circles of lawyers and judges, and from the prosecution, were gathered for this purpose at that time. I myself represented the opinion that this problem grew into a problem only because it was treated in a wrong manner on the part of the Administration of Justice. The entire question could be solved by a small remark in the "Deutsche Justiz", namely, by pointing out that the law does not provide that a formal application has to be made and therefore it would have been sufficient to instruct the prosecutors to refrain from a formal application for penalty and to be satisfied with adducing the evidence and then stating the reasons which spoke for and against the defendant. With that, the entire excitement and fuss which was caused by the formal application for penalty could have been avoided.
Q.- What reason did you give for this suggestion?
A.- The reason which I have just explained.
Q.- What course did your conversations take? It was pointed out several times that the matters of the SD were treated secretly.
A.- In my case the matter was quite open and free, in my office. Elkar came into my office, sat down on a chair -- or sometimes he remained standing -- and told me what he wanted to know, whereupon I stated my position on it. During that time the rather lively traffic that rent through my office continued. Officials went in and out, and my associates too came in time and again and even frequently participated in the exchange of opinions on the problems that were being discussed. Thus there was no secrecy connected with this matter.
Q.- Elkar alleges that you have also talked about pending trials and had discussed also the facts as well as the legal situation and future judgment. English transcript, page 2891. Was the name of a defendant ever mentioned as long as trial was still pending?
A.- The names of defendants never played any importance in these conversations. The manner of expression was general. The individual cases, as such, were of no importance at all and their outcome even less so. It is possible that in the most infrequent cases - as an example of a definite criminal deed, in order to demonstrate for example the method of the consequences of this crime and to use it in the discussions of general questions, that an individual case was mentioned, by not in a single case was it like this that Elkar ever was interested in a certain pending trial or even wanted to get some information about the final outcome in advance such an evaluation was not possible in practice at all for the decision could be given only on the basis of the trial, after it was concluded. Thus, Elkar's activity was not aimed at such a goal.
Q.- By mentioning an individual case, did you ask for the opinion of the RSHA in order to find a basis for the political evaluation of the offense?
A.- Never. I had no connections whatsoever to the RSHA. Moreover, such a method, even in the Third Reich, would have been an absolute impossibility and it was never alleged that this occurred.
Q.- Did you, in any individual case, receive an instruction from the RSHA or a recommendation to direct the trial in a certain direction under a certain point of view, or to pronounce a certain definite penalty?
A.- This too was never alleged so far. Such a procedure too would have been an absolute impossibility. No office would have dared to suggest anything of that nature even.
Q.- According to the English transcript, page 1720, the witness Ferber said that the SD did not interfere in a pending case, but he made the following restriction, and I quote:
"But, for example, one had gained tho impression ostentatiously in the Katzenberger case that there was a cooperation of political and SD forces with Rothaug from the very beginning on the basis of telephone conversations."
The witness Elkar says, in regard to the Katzenberger Case, in the transcript, page 2895, and I quote:
"In order to quote an especially typical case, we once discussed the Katzenberger case. However, I do believe it was already after the sentence was pronounced. At that time, I expressed my opinion to the effect that, according to the instructions which I received as a SD man and also as far as anything became known generally, the facts of racial pollution did not exist to the fullest extent in that case for, as far as I know, the laws required that there was intercourse between the German and the Non-Aryan."
In the following testimony Elkar reports that you said, at that time, and. I quote:
"It would hardly be conceivable that such a person as he described himself......" (he meant Katzerberger)".... said that nothing happened if a girl sat on his lap and that, therefore, he considered the evidence as conclusive."
I, therefore, ask you, was the SD or any other political office introduced into the pending trial of Katzenberger?
A.- Neither the SD nor any other political office interfered in the Katzenberger trial before, during, or after the trial.
Q.- Did. you write down the question of guilt and the judgment for political offenses before tho sentence was pronounced, or did you take into consideration the wishes of political offices before the Sentence was pronounced?
A.- First, I can say the following in principle. The Katzenberger case, as I shall explain in detail later on, was taken over into the sphere of the special court by me after it was submitted to me with the following question, and I had studied the files thoroughly.
Immediately after this study of the files, I decided upon the question, and that was by my own decision, that the suspicion in this case was of such a nature that when one followed up this affair further the special court of Numberg could become competent in this case. Between the conclusion of the study of the files and this decision, a third office did not even have the theoretical possibility to influence me in any way. Within the where of the Party itself this case did not become known through me but, on the basis of the consequences of the duty of the prosecution, which exists according to the regulations, to report about criminal cases to the Gauleitung (Gau Leadership), to report about cases in which a Party member was involved. Here it became important that Frau Seiler had been a party member. At the moment in which the prosecution began its proceedings against Seiler, the prosecution had to make a report to the Gauloitung. Because of that, the entire occurrence became known to the Gau leadership. However, neither the Gau Leadership nor any member of the Gau Leadership orally, by telephone, or in writing, or directly or indirectly, in any way, even tried to exert any influence in this proceeding.
TIE PRESIDENT: Ask you next question, please.
BY DR. KOESSL:
Q.- The witness Ferber has reported -- English transcript, page 1393 to 1395 - that, at a meeting in Strasbourg in 1942, Freisler had spoken to him on account of the Katzenberger case and had described the using of the decree against public enemies in this case as rather doubtful. Ferber immediately objected to the decision of the Ministry that the sentence was executed. When Ferber related this incident to you, you are supposed to have told him, with a raised finger, and I quote:
"They should have dared to pardon Katzenberger."
Is this testimony of the witness Katzenberger correct?
A.- Ferber, as my protege, was in Strasbourg. I knew that he would like to go and I helped him to go. After he returned....
THE PRESIDENT (Interrupting): May I interrupt you? Will you direct your attention to the question that was asked you?
A.- After his return from Strasbourg, Ferber told me about what went on there and, in so doing, he also mentioned that Freisler bad said the judgment in the Katzenberger case had been just on the verge of being tenable, Thereupon he, Ferber, immediately had asked the counterquestion regarding the sentence: "But, Mr. Under Secretary, why did the Reich Ministry of Justice have the sentence executed. Thereupon, Freisler is supposed to have been silent. In that connection, I too said that the sentence was legally tenable and I certainly was of the opinion that I considered it impossible that the Reich Ministry of Justice, for reasons of lack of the legality of the decision, would have pronounced a clemency decision because this was the only question that was at stale. Namely, whether the sentence was legally tenable.
THE PRESIDENT: Well, if the witness will direct his attention to the questions that are asked him, he will get along faster. I recollect the question to have been whether you raised your finger and said they should have dared to pardon Katzenberger. Did you say that, or didn't you?
A: I said what I answered to that question, and I answer that question in the negative.
THE PRESIDENT: Ask another question. Next question, it is not very important anyhow.
BY DR. KOESSL:
Q: Elkar reports about the Bochmer case, page 2894 in the English transcript. In that case, you were to have considered the denying of the right of clemency, is that possible?
A: That is absolutely possible. I considered the nullity plea against the defendant not correct.
Q: According to the testimony of the witness Elkar, page 2892, you seem to have discussed the criminal proceedings against the Poles once too, and Elkar says that in your opinion before the law against Poles was promulgated, there was sort of a gap in the law. During cross examination Elkar said that as for the discriminatory jurisdiction of the courts, if offenses committed by Poles came to your attention, that you represented the point of view that the discriminating administrative regulations would have to be replaced by a law. That the Poles' offenses against Germans and against law andorder should receive severe penalties, as for example of such an offense, Elkar sites the threat of a slap in the face. I now ask you before the law against the Poles of the 4th of December '41 was promulgated, did you see a necessity to issue a special criminal law for criminal offenses committed by Poles?
A: Such a necessity did not exist. Before the law against Poles was promulgated, the Poles were sentenced according to the same laws as Germans. The cases which were discussed here in part, or will be discussed here, as for instance the Lopata case or the Schuttrich case, demonstrate that in all of these offenses the so-called inner facts were especially important. The Reich Supreme Court established very extensive principles in this respect, and we could not just push them aside. The law against Poles was promulgated absolutely as a surprise to me and my assistants. As every other war time law was. None of us had any idea that such laws were being prepared. The practice of other Special Courts and the Polish question, we did not know except in those cases where the Reich Supreme Court stated its opinion on the judgments of other Special Courts and had developed certain definite principles on the basis of this judgment, which, of course, we also had to take into consideration when we tried our own cases. As for Administrative regulations which are mentioned here which were supposed to regulate the behavior of the Poles, I don't know anything about that even today. I have never seen suck an administrative regulation. The living conditions under which the Poles were living, I did not gain any insight into, either, because in general the Poles were living in the country; therefore, I would not know either I am supposed to have developed any usable opinion in this connection.
Q: Did you observe any abuses which had to be stopped?
A: I did not observe any abuses.
Q: Elkar says, in English transcript page 2922, I quote:
"The draft for such a criminal Law, of course, did not originate with Rothaug, but it was expressed in the transcript of the court, partly when I made the reports, partly in exact wording as Rothaug, has given it. There would h have to be additional regulations for certain facts." Elkar mentioned the wrong feeding of animals by the Poles as an example. The thoughts which you gave to Elkar in order for him to use his reports. Did he report them correctly?
A: I never suggested that criminal facts should be formulated. I cannot judge what Elkar tries to say here since he states it in such a general way. Even less, I cannot defend myself against this charge. I would have to be charged with concrete events; the alleged practice in other connections is mixed up with the possibility that it might have been so.
Q: The witness Faerber, page 1397 and 1398 in the English transcript, reports about a case in which a Pole was sentenced to death because he mixed glass splinters into the food for a cow. Faerber says literally in one case I know that the death sentence was founded on the corresponding provisions of the law against Poles. Thus it was easy to construct a crime which was worthy of being punished with death," and I would like to say in quote "to construct", what can you say about this case?
THE PRESIDENT: And the name of the case, the name of the defendant?
DR. KOESSL: Faerber did not name a name; therefore, I am, unfortunately, unable to toll you the name of the case. Faerber spoke only about a case in which a cow, by mixing glass splinters into the fodder, was killed.
THE PRESIDENT: The case appears in some of the exhibits.
I thought you could remember the name of it. We have seen the case.
DR. KOESSL: I do not know the name. The page I quoted, page 1397 of the English transcript.
BY DR. KOESSL:
Q: I believe that you can answer.
A: At least one such case did occur. I do not recall the name of the offender anymore either. I also do not believe that Faerber had anything to do with this case. I am also not in a position to reconstruct this case in all its details, but I do know this much. It was found out, and I remember this for certain, by the confession of the defendant himself, that on purpose he had mixed splinters into the fodder and the cow had died because of these glass splinters as was shown by an autopsy. And it could not have been any different according to all the circumstances. Furthermore, it was also known for certain that this case happened out of the sole intention to commit an act of sabotage as it was generally advised to the Poles to do by enemy radio, by leaflets that wore dropped; and as it happened otherwise, too, in a similar or different way. What the final result of the case was, I do not remember anymore; but I believe that the death sentence was pronounced because generally this case was regarded as a serious offense against the war effort. In that connection it mentioned in such a way as if the death sentence was pronounced for cruelty to animals. That of course, is incorrect. Whether the law against the Poles was applied in this glass splinter case, I don't know. The possibility too exists that the case was already tried before the law against Poles was issued. However, in that case too no other penalty would have been pronounced either.
The principles which were applied here were applied by the Special Court with all three courts that were sitting; not only when I was presiding judge. The penalty was laid down absolutely certain by Reich law and the point was that there were taxes upon the cattle during wartime with the aim of hurting the war potential.
Naturally; the individual cow was not a party in judging the case. What was the important factor was -
THE PRESIDENT: We fully understand that the cow wasn't the essence of the charge.
BY DR. KOESSE:
Q Would a German have been sentenced to death if he had committed the same deed; witness?
A Of course; every German who, under our tense food situation; would have killed some piece of livestock with the aim of hurting the German war potential would have been sentenced to death.
Q Ferber mentioned another case; a second case of the same nature in which a Poles had hurt a cow in the leg, He says literally; "The case was built up as a so-called sabotage against the war efforts and the Pole was sentenced to death." The sentence was executed too, In your recollection is that description correct? There is no name stated in this case either.
A I do remember that cases of that nature occurred and the leg of the cow; especially partly also between the claws; was injured in order to render the animal valueless in that manner. But the individual circumstances; however; which were important for judging the act and the amount of penalty that should be pronounced I do not recall and what is hero given as a description of a case is not sufficient as a basis for judging the case. Whether I was presiding judge in such a case at all I do not know. It is possible that my memory is based on the fact that when tap opening date of the t rial was set I had read only the indictment.
Q In individual cases of t hat nature were exact investigations made in order to find out whether the intention was to sabotage the German economy?
A These occurrences against Poles were investigated just as thoroughly as they were investigated if the cases were against Germans. There was no difference made here between Germans and Poles and no distinction could be made because the aim was always the same against both categories of people, namely, with a great deal of thoroughness to find out the truth, which, in a criminal trial, is the most important element, the primary consideration. And, therefore, especially in the case of such sabotage acts we consulted a number of experts, veterinarians and experienced-farmers in order to supplement our knowledge in these matters and to make it more sure.
The requests for submission of evidence in cases against Poles were no less than in the case of Germans.
Dr. Koessl I want to point out that the description which the witness has just made will be enforced by us by discussing a case Cudsik. That is an example of economic sabotage committed by a Pole and the investigation of this charge by the Special Court of Nurnberg.
BY DR. KOESSL:
Q Ferber explains that his expression, "A crime that is worthy of a death penalty" was constructed by pointing to Article IV of the Decree Against Public Enemies and the sound sentiment of the people and in so doing Ferber says: "It was regularly like this, that against Poles in particular not the real sound sentiment of the people decided it but a Fuehrer Order, a modified Party directive, a request by the RSHA and that took effect just according to the attitude of Rothaug himself in the individual case, depending on Rothaug's attitude in'an individual case, sometimes in a more brutal manner and sometimes in a less brutal manner," English transcript page 1398. What can you say about this description by Ferber, especially? Did you have a Fuehrer order or a modified Fuehrer order or a modified Party order? Did you have anything to do with them and what about requests by the RSHA?
A If we regard the attack Upon the livestock as an act of sabotage, if such a case is proved, the question is no longer what the sound sentiment of the people requires or doesn't require, but what is laid down here is apparent from the very clear wording of the law. I never received a Fuehrer order, neither in individual cases nor in general. I never received a request of the Party either, nor a request from the RSHA. All these matters 'were not necessary but our practice was the same as I believe it is in the entire world, that in case of war an act of sabotage, in accordance with the existing intention, has very serious consequences. One has to take into consideration the maintenance of the livestock level in Germany during the war played quite a different role than was the case, perhaps, in other countries, because all of Germany possessed certainly less pieces of cattle than there were, for example, Poles in the whole country. The effects, especially by pests, and consequences of such cases of sabotage, therefore, could have catastrophic results and from that point of view matters, at least according to the legal situation, that could be recognized and, according to the jurisdiction of the Reich Supreme Court that is the way they were regarded in Germany.
Q In order to elucidate how severe, for example, the Reich Supreme Court, in particular, generally judged the situation in those cases is demonstrated by the case in the list of death sentences of the Special Court Nurnberg in which the notation is made: Sentence of the Reich Supreme Court. I believe it was in 1941. The following were the facts.
A Pole had given a civilian pair of pants to a Serbian WP in order to enable him to flee into his home country. In fact, the Serbian prisoner did escape. The Pole confessed, however, he denied decisively that he had intended that the Serb should join the Tito forces; that he only did it out of compassion. Therefore, we sentenced him to a penal camp, three years in a penal camp. Thereupon, a nullity plea was filed, the Reich Supreme Court changed the sentence, did not even refer it back to us, but quickly sentenced the Pole to death by stating in their opinion that the facts which we had determined ourselves.