At that time, however, he expressly explained that I personally, during times of that kind, was needed in Nurnberg especially.
That is surprising to me, again, because I cannot understand how the same person could work in other ways with the opposite arguments for just now he would have had an opportunity to get rid of me by just leaving things as they were, at least for the duration of the war. That would have helped him, and , for today, it would have helped me too.
One more pointy and that is a situation which occurred in 19411942. The Gau Executive Office (the Gauleitung) at Bayreuth, from 1940 on or possibly somewhat earlier, wanted to have the area of the Special Court separated as far as it was in the Gau Bayreuth. That would be the entire area which is in the lighter shade on that map. The demarcation line is just about through the middle. There were some separatist tendencies, with the aim of gaining a certain amount of autonomy for that entire area as far as the Special Courts were concerned, not because they were dissatisfied with us or that they had any complaints, but that was a tendency which could be observed quite generally on the part of the Gauleiters, that institutions of the state from other Gaus should not become effective in their districts.
Whether the intentions went any further in Bayreuth I could not tell. At any rate, there is a fact that around Weiden and around Regensburg one wanted to establish special courts, that is, special courts with the local position in Weiden and Regensburg.
Doebig called me at that time and asked me what my attitude was concerning that problem. I told him that in my opinion the establishment of new Special Courts with completely new and inexperienced people in the most of a war, just because some Gauleiter has great big ideas, could not be justified under any circumstances. I consider that in the light of trash.
He shared my opinion with the characteristic reasoning that in his district of the District Court of Appeals he certainly, under any circumstances, would not have three different kinds of court practice which would have arisen if now courts would have been established in Weiden and Regensburg in addition to Nurnberg. But I have to tell myself that if his intention was at that time to limit my influence or my power, then here again it would have been a cinch for bum to initiate with the Ministry that these areas that I have mentioned, which would still have continued to be under his supervision, should have their own special courts. All he needed was to express that desire by telephone to the ministry. No more was needed because no more was done in other Gaus. It would have been an occurrence which was of no particular significance because the same separation had taken place in Bamberg during the war, because the Special Court Bamberg....
A. Which attitude showed Doebig in his speeches with regards to National Socialism -
THE PRESIDENT: May I interrupt? It seems appropriate at this time to state to counsel and to the Defendant Rothaug that the Tribunal fully recognizes the right of the defendant, within reasonable limits, to show bias or prejudice, if any, which may have existed in the mind of any witness who has appeared against him. We recognize that as a sound rule.
We also recognize that any statement which any witness has made against the Defendant may be contradicted by the defendant if, in his judgment, contradiction is necessary.
But we counsel you that neither Doebig nor Ferber nor any other of the witnesses are on trial. The testimony for some time has appeased to be directed toward an attempt to convict witnesses rather than to acquit defendants, and we think that you should direct your testimony from here on directly to the Question of the changes which may have been made against this defendant.
We have permitted, at great length, the testimony which is relevant only to the purpose of showing some bias or prejudice on the part of some of these witnesses, but you have extended that type of examination to the full limit and it is new to be terminated. Go ahead.
BY DR. KOESSL:
Q. Witness, did you at any time go against the position of Doebig?
A. No, at no time.
Q. When did you find out for the first time that the practice of the Special Court at Nuernberg, your manner of conducting trials and your National Socialist point of view were supposed to have been the reason for your prospective transfer to the East?
A. If I shall discuss that matter, then I cannot avoid describing matters as they occurred.
THE PRESIDENT: The question was: When did you discover that these reasons, which were mentioned, were employed as the reasons for seeking your transfer to the East? That question can be answered categorically.
A (Continuing) About the reason given, that allegedly the practice of the court of Nurnberg was the reason for my transfer, that I found out only in this trial.
THE PRESIDENT: Ask you next question, please.
BY DR. KOESSL:
Q. How did Doebig make you understand that the Reich ministry of Justice had ordered your transfer to the East?
A. As I have already explained, my relation to Doebig was a relation of frank and open friendship. I came to him only when he called me.
THE PRESIDENT: Will you answer the question, please? Repeat the Question to the witness.
BY DR. KOESSL:
Q. How did Doebig make you understand that your transfer to the East had been ordered by the Reich Ministry of Justice?
A. He one day called me - it may have been in 1941, about the middle of 1941; at any rate the offensive in Russia must have had begun before that. I also went to his office and he gave me to understand that he had to give me some very sad news which was worse for him even than for me because he had to lose me now.
I sat down and he informed me about tho decision by the Ministry to the effect that I was supposed to accept a certain position in the East. He demonstrated great unhappiness and assured me that he had no idea how he could ever replace me, but he said that he could do nothing against that because in the last paragraph of that decision the provision was contained that in tho case of all persons listed no objections were permitted to be raised against the decision if those names were underlined. Then he gave the list to me so that I could determine for myself, which I did, that my name was the only one that was underlined.
He also said that of course that left him without any possibility to do anything for me. He was apparently quite impressed and I consoled him by saying he shouldn't be so upset, he shouldn't mind it because I would not go to the East. Then he told me that that was probably a great sign of recognition and I pointed out against that, that since I had stomach trouble I didn't like to make such trips. He said, "Well, you might as well try it," and also said -
THE PRESIDENT: Is it the substance of your testimony that he tried to get you to accept the position and you objected and refused?
THE WITNESS: One could say it that way.
THE PRESIDENT: I think that is the substance of your testimony. Co ahead with something else.
DR. KOESSL: Mr. President, at this point may I ash the Tribunal that tomorrow, after this infortunate matter of the relation between the Administration of Justice and the judges, I be permitted to call some witnesses because I have the definite impression that the state of health of the defendant has been somewhat impaired so that he could not answer the questions with that amount of precision which would be desirable for the Tribunal.
Therefore, I wanted to submit the request in consideration of the state of health of the defendant; that tomorrow after this chapter is concluded, which in my estimation may take until the mid-morning recess, that after that I be permitted to call some witnesses who are in the prison of the Palace of Justice and can always be reached.
THE PRESIDENT: Counsel will recollect that the suggestion came to you from the Court that in the event that the health of the defendant reasonably required an interruption for the purpose of examining other witnesses, that that might be done. So you know that answer to your application already.
DR. KOESSL: Thank you, Your Honor.
THE PRESIDENT: We will recess until tomorrow morning at nine-thirty.
(The Tribunal adjourned until 14 August 1947, at 0930 hours.)
Court No. III Case No. III.
Official Transcript of American Military Tribunal III in the matter of the United States of America against Joseph Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 14 August 1947, 0930-1630, The Honorable James T. Brand, Presiding.
THE MARSHALL: 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. Marshall, will you ascertain if the defendants are all present?
THE MARSHALL: May it please your Honors, all the defendants are present in the courtroom with the exception of Defendant Engert who is absent due to illness.
THE PRESIDENT: Defendant Engert has been excused. Let the notation be made.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION (Continued)
DR. KOESSL: Koessl for the Defendant Rothaug. I ask to be permitted to continue the examination of the defendant as a witness in his own case.
THE PRESIDENT: You may proceed.
BY DR. KOESSL:
Q. The witness Elkar said - English transcript Page 2001 - your activity against Doebig only started when you were informed about the plans for your transfer to the east. Is that correct?
A. As I have already explained, my relations to Doebig until that attempt to have me transferred to the east was an absolutely correct one on the part of Doebig. I was treated with special amiability until that date, and that counteracted certain suspicions which arose from time to time in my mind. Only when that attempt became apparent to me - the attempt to have me transferred - my suspicion arose again and, consequently, I certainly became more reticent toward him.
The entire matter, if I may use a comparison, appeared to me like an embrace during which the dagger is pushed into one's heart from behind.
Q. Elkar says, furthermore, you had asked him to inform the RSHA of the plan. You also had sent a report directly to the RSHA or you had stated that you would do so. You had made a report to the executive officers or officials of the Gau and a report to the Party Chancellory. What can you say about that?
A. Of course, after years of the most difficult and hard work, which imposed the greatest responsibilities on me, I was extremely indignant, about the treatment which I had received. I was absolutely certain that I spoke to all my friends, acquaintances and relatives about that treatment, and also in all these circumstances there was the unanimous desire to do everything in their power in order to prevent what was apparently intended.
With absolute certainty I have to exclude, however, that I had rendered any report of any sort concerning that matter to officers of the Party, with the purpose of doing any damage or any harm to Doebig when doing so. It is, therefore, untrue that I sent the report to the RSHA or to the Party Chancellory or to any other office of the Party about that matter. I did not do that for the simple reason because I did not have a definite proof to show how deeply Doebig was involved or responsible for that action. I could only imagine. The only thing that I did was that I described the whole affair just as it occurred in all its details in writing, and I deposited that document with the Gau legal office of the National Socialist Lawyers League. That was all I did at that time in that matter.
A short time after Doebig sent for me again and tole me, full of joy, that I had been dropped from the list, which was well known to me. A short time after that he sent for me again and informed me that at the Ministry he had obtained contact in that matter and I should not have any misgivings against the Ministry because they up there were very much in favor of my person.
That settled that matter as far as I was concerned, and I did not do the least concerning that matter any more. I did not do anything about or against Doebig because the whole affair had become uninteresting for me.
As a judge, according to the law, could you have been transferred to the east without your consent?
A. In principle that could not be done. I was protected in this connection by Paragraph 8 of the Judicature Act.
Q. Will you please read that provision?
A. Commentary on the Code of Procedure by Loewe. It has been quoted before. It is Article 8. "Judges against their will can only be transferred on the basis of a judge's decision and only for reasons and on the basis of those formalities which are provided for by the laws, permanently or temporarily. That applies to their being released from office, being transferred or retired." That is the principle.
Q. On what could that transfer to the east be based then?
A. The transfer to the east, during the war that is, technically could be based on the decree of the first September, 1939, in the Reich Legal Gazette on Page 1658, which has been quoted by the Prosecution in its opening speech. The Prosecution terms that decree as an illegal one because it had made it possible to transfer judges who were in disfavor; but a similar decree, to my knowledge, was issued also in the year 1914.
I don't consider that decree an illegal one and I base my opinion on the fact that it does not violate and it does not even touch the principle of Paragraph 8 of the Judicature Act. There was only a certain limitation to the effect that such transfers could be affected if the sole reason was the safeguarding of requisite numbers of personnel, and because Paragraph 8 of the Judicature Act had been maintained explicitly in addition to that decree, one can see that that decree under no circumstances at all should be used or was intended to be used to transfer undesirable judges, for the sole reason that their judgments were either too lenient or too severe and, therefore, undesirable. If, therefore, such transfers were carried out for the reason that a judge was too mild or that a judge in the opinion of the Administration of Justice pronounced too severe sentences, then there was apparently an abuse of that legal provision in the meaning of forfeiting the purposes of the law.
Q. During your examination yesterday you mentioned that you had refused the position of president of district court of appeal. What was that about.
A. That occurred about one year after that attempt to have me transferred. That is to say, about the middle of 1942: As I have already explained, during that period I again had absolutely correct relations to Mr. Doebig. At about that time, one day the Gau Chief of Personnel, Malizius, of the Gau Executive Office of Franconia, called me and told me that the Gauleiter desired a change in personnel in the post of the president of the District Court of Appeals at Nurnberg. According to the opinion of the Gauleiter Doebig was qualified for a position in the Ministry but not in any field job. I said, thereupon, that I considered that intended measure absolutely wrong in every respect, for one because Doebig was an excellent administrative official and could not be replaced by anybody, at least now during the war.
Malizius asked me then what my personal attitude would be if I should become his successor and I told him that a position of that kind at no time had any appeal for me. I disliked any kind of activity in the Administration of Justice as far as I was concerned and I would ask him to oppose any suggestion of that kind. A position of that kind was not the right thing for me.
BY JUDGE HARDING:
Q. A question, please. As I understand your testimony, you say that your transfer to the east would have been illegal under the Judicature Act. Is that correct?
A. I said that as such the Judicature Act on principle does not permit the transfer of a judge against his own intentions, but in consideration of the circumstances of war and the personnel needs connected with it, it was necessary to somewhat loosen that legal provision to a very small extent, as far as the judges were concerned, and that decree of the First September, 1939, afforded an opportunity to the Administration of Justice to transfer a judge against his own will if the reason was solely based upon the requirements of personnel.
The principle that a judge cannot be transferred against his will was, however, maintained, because under no circumstances transfers could be carried out only because a judge was undesirable for reasons that his sentences were either considered too lenient or too severe and to get rid of him in a certain area.
Q. Well, assuming that you had been ordered transferred, it would have been illegal because it was not based on the question of personnel, as I understand it, but upon other practice?
A. Yes. It would have been illegal because Miethsam admits himself that the nature of my sentences had been the reason for that intended measure. This I would consider defeating the purposes of the law.
Q. Now, assume then that your transfer had been ordered, which would have been illegal. What would you have done about it or what could you have done about it?
A. That question did't come through quite clearly.
Q. If your transfer had been ordered on the basis that you stated would have been illegal, what would you or could you have done about it?
A. I could not have done anything against it because the true reasons would not have become known to me. These reasons became known to me only here in this trial about the testimony of the witness Miethsam.
Q. You would have had no recourse against an illegal order then, is that correct?
A, If it had been known to me what the true reason for that transfer was, such as it has become known to me now by the statements made by Miethsam, then I could have requested against myself a discharge proceedings so that in that manner I could have seen the entire problem.
Q. But you have no way to know; is that correct?
A. Yes, yes. That possibility, of course, did not exist. The background of that action was covered up intentionally.
Q. So you could have been transferred for an illegal reason and had no recourse; is that correct?
A. In practice I did not have any recourse.
BY DR. KOESSL:
Q. But Doebig was dropped finally, how did that come about?
A. Doebig was not dropped but he was transferred to a position of equal rank with the Reich Supreme Court. I have already pointed out that in the Summer of 1942 I had voiced opposition against such a measure. In the late Fall of 1942 the Gauwalter - Gau Administrator of the Lawyers League, Oeschey - informed me that on the basis of a general directive an investigation of the chiefs of the authorities, as to their political loyalty in their present position, was intended to take place. That meant, therefore, not the general political reliability but the compatibility for certain specified positions, that is to say, positions which for reasons of personality and character one would not want to accept unless one had a positive attitude toward National Socialism.
I was then assigned the mission to report about the events in my Gau group in connection with Doebig. We discussed matters. The events in question were occurrences which had become known to us directly or through reports from others.
It was also material in part which we were not easily in a position to examine. What it was in detail I could no longer say today, but I know that it dealt with the notes which I had made concerning the attempt to have me transferred to the east, as I have already mentioned, and which I had deposited in the Gau office of the Lawyers League; and in addition an event played a certain role which had occurred in connection with the removal of the Streicher pictures.
That latter occurrence was in reference to the fact that in connection with Streicher's being sent into exile from all the office rooms and offices of the Party, his pictures, which had been hanging there were removed. In this connection Doebig called a subordinate official to him to ask him what he was going to do with his picture because he did not want to look at that vulgar face any longer.
What caused a certain amount of excitement in this connection was not the removal of the picture of Streicher from offices, because that was a matter of course and had been ordered, but one objected to the nature of this particular occurrence because Doebig, at least until the time when Streicher's star dropped, had been one hundred per cent in favor of Streicher's policy; that he had enjoyed the benevolence and sponsorship of Streicher in his own career; and that he now made use of the fact that Streicher was in disfavor to adopt an attitude which we call the policy of the donkey step. Only in this direction was there some excitement.
But, it has to be stressed that, from the very outset, we were unanimous about the fact that report should have no secrecy at all and we insisted that Doebig should be afforded an opportunity to answer to that report. In this connection, it is of importance that Doebig was a Party member and a member of the National Socialist Lawyers' League and, therefore, had subordinated himself, of his own free will, to the provisions and regulations of that organization. The first question, therefore, was whether he should be afforded an opportunity, in the form of an honor court, but that would have gone too far and, therefore, we preferred, since he knew the Deputy Gaueliter Karl Holz very well, to have the matter settled through Holz. At the same time, there was no secrecy connected with the whole matter, but it was carried out quite openly and publicly in contrast to the method which had been intended against me and the final aim of which had been that I should still kiss the hand that struck me, because I was supposed to have considered that transfer to the East as an honor and recognition. That was how it was planned.
Q Doebig calls you the "guiding spirit" in the intrigue against him-English transcript, page 1755. Would you please be very brief in your comments on this after all you have explained to us already?
A I was not the "guiding spirit" but, in that entire matter, I only worked on the basis of a definite assignment and I myself had opposed these plans before.
Moreover, that entire procedure was carried out quite openly - that is to say, within our circle, quite openly - and it served only to give a certain amount of security to Doebig himself because he should have been afforded an opportunity to justify himself which was an element which was quite lacking in my case. Moreover, we had assumed a frank and open position in this matter. That action was based on regulations and provisions which Doebig himself had accepted and acknowledged by subordinating himself to the Lawyers' League. I can not see any reasons anywhere to assume that an intrigue against him had taken place.
Q. Then Doebig says, on page 1756 of the English transcript, that Miethsam had told him that you wanted to become president of the district court of appeals. You have already answered that question and you can be very brief now with whatever comments you have to make.
A I never had that thought at all because I did not consider myself to be the right man for such representative functions. They are not in accordance with my nature.
Q (Interrupting) Doebig.... Excuse me.
AAs for the suggestion of the position of vice president - everything has become clear to me now. The position of president of a district court of appeals was, particularly in the Third Reich, because it was a very exposed position, a very insecure one. When one committed the stupidity - and I can't call it anything different - to suggest me for the position of a vice president, I found ample reasons for that suspicion which, in my opinion, was the basis from which everything arose later. That is rather, the suspicion on his part that I could become dangerous for him and for his position. Therefore, that twofaced method which, in the final event, desired to have me transferred from Nurnberg.
Q On page 1766 of the English transcript, Doebig says that you had listened in on his telephone conversations to Miethsam.
Miethsam, in the English transcript on page 3919, says that, through some confidential agent who was in Doebig's surroundings, you had obtained knowledge of the telephone conversations. Did you ever tap any telephone conversations or have anybody else do it?
A In this connection I can only say that, throughout my entire life, I have never listened in to the telephone conversations of anybody else or had anybody else do that for me. Such matters and such methods never interested me and I claim that they are not compatible with my character. From Doebig's surroundings I did not know anybody personally or any more closely, and I never discussed what Doebig could possibly discuss over the telephone to Berlin. Neither did I have any possibility to listen to such telephone conversations myself. When I first heard about that through here, I assumed that it was probably intended to charge me with having such conversations checked by the police or the SD. That is also out of the question. It was said that I might have had that done by an employee of the telephone exchange, but I can assure you that, until now....
THE PRESIDENT (Interrupting): May I interrupt?
You have consumed five minutes of the Court's time in answering a direct question which could have been answered directly by the word "no". You were asked an affirmative question as to whether you had ever listened in on a particular telephone conversation. Your answer is "no". Will you attempt to be more brief.
THE WITNESS: I have never listened in on any telephone conversation.
THE PRESIDENT (Interrupting): You have answered it. You have answered it over and over again. Let's not repeat.
BY DR. KOESSL:
Q Miethsam says that one of the charges against Doebig had been that Doebig had suggested Dr. Grueb, who was politically unreliable, to be promoted to Landesgerichtsrat (District Court of Appeals' Counsellor) English transcript, page 3919. In an expose which had been attached to a letter of the Gauleitung it was supposed to have said:
"In order to obtain a promotion of Grueb, Doebig called his friend at the Reich Ministry of Justice, Dr. Miethsam". In fact, such a telephone conversation took place. What can you tell us about that?
A What the contents of the outline were, which allegedly was sent by the Gauleitung of Franconia to Berlin, I do not know. About the matter of Grueb I know the following: Doebig, when that question became acute, called us and asked us whether we, on our part, had any objections and would voice any misgivings against a promotion of Dr. Grueb. We assured him that we would not voice any objections against Grueb. That meant that we were ready to support Grueb, even if, from any other side, objections would be made against him. However, we were never informed about objections of any kind. They may have existed and may have led to difficulties which were observed later. As far as we were concerned, we did not cause any such difficulties in that matter.
Q. Doebig asserts that he did not consider it a very advisable solution to use you in the East - page 1842 in the English transcript. What can you say about that?
A. I can only say that I don't believe that because his connection with the underlining of my name in that list, and the notation made with reference to it that no official objections could be made, shows that the whole master had been done with his approval and agreement. It is also to be added that Doebig persuaded me to accept a transfer and he tried to make it more acceptable for me by saying that there I certainly wouldn't have so much work to do because those legal remedies, which I had to afford people in the area of the Reich, were quite out of the question in the East.
Q. Doebig asserts that he had reproached you for the manner in which you conducted trials and you had promised him twice to use more restraint on your temper. English transcript, page 1841. Is that true?
A. Doebig reproached me one time only about the manner in which I conducted trials, but in the mildest form. He said first that what he was about to tell me I should consider as an advice of a colleague. He had observed, he said, during the session that, on and off, I had made remarks to my associate judge on my right which could be heard in the audience. He thought, he said, if I could stop this, then the impressive manner of conducting trials would only be improved, I retorted that I was grateful to him and that one could not see those matters oneself - such matters of temperament - and I told him that I would do my best not to do that in the future. That was the only time that Doebig, in a purely friendly manner, pointed something out to me, as I would like to say. It was not really a criticism in the usual meaning of that word.
Q. Now, a few more detailed questions concerning the subject of administration of justice.
The prosecution, in its opening statement, has set forth that, to an increasing extent, a personnel turnover took place in the Third Reich among judges and prosecutors, and it is pointed out at the same time that you had resigned as a judge and had become Reich prosecutor.
What can you say to that?
A. That changeover from judge to prosecutor is no characteristic thing of the Third Reich. In Bavaria, the second largest Land of the Reich, and also in other laender, it had always been customary. My own career demonstrates that in 1927 I was public prosecutor, in 1929 I became a judge, in 1933, a public prosecutor, and, in 1934, again a judge, and, finally, in 1943, again a prosecutor. That had no political purpose but the underlying thought was that a certain group of judges and prosecutors, by this changing career, should obtain information about the work in both types of office by their own practical experience, and the good experiences brought about gave cause at the time of the unification of justice throughout the Reich, to have that method applied all over the Reich.
Q. In order to avoid repetition, I'll skip several questions and come now to a question in connection with Miethsam's testimony. It is found in Exhibit 74 of the defendant Schlegelberger. Miethsam says there that Schlegelberger, when he had suggested you, had rejected that when the question of the position of president of the district court of Appeals in Nurnberg became acute because you had been an outspoken National Socialist. What do you know about that, and is it correct, according to your knowledge?
A. One is apparently trying to prove that so-called "outspoken National Socialists" were rejected, and I am cited as an example. Only for that reason I have to discuss that at all. What actually happened in Berlin I do not know, but I know one thing, that the Reich Ministry of Justice certainly was not an institution to combat National Socialism. It is pointed out that about one hundred judges were placed in positions where they could expect promotions who were not members of the Party. In this connection, I only want to point out that I myself, on the 1st of April, 1937, was one of these one hundred judges.
Q. Did the Reich Ministry of Justice, for instance in the person of Miethsam, ever make any endeavor to prevent the members of the administration of Justice to do too much for National Socialism in any field?
A. I have not observed any endeavors of that kind.
Q. Ferber asserts that also under the Thierack Ministry you maintained your attitude of hostility against the administration of justice. Thus, you had refused to attend the reception of Under Secretary Rothenberger at the railroad station. You did not appear when he was introduced and, in addition to that, you had once shown around a photograph of Rothenberger with a certain amount of disparaging remarks. Are these descriptions correct?
A. In this connection I want to say quite briefly it is true that I was not at the railroad station when Rothenberger arrived, but I was never invited to do so and that simply because I am not the right type for ceremonies of that kind and because attending there was not part of my tasks. Engert, as the administrator of the Gau organization, was the right person for that matter. It is not true that I was not present when Rothenberger was introduced. That reception took place in this building, in the so-called large hall. I was present, and I was also introduced. Never in my life did I possess any photograph of Mr. Rothenberger. I lived in Nurnberg. Rothenberger lived in Hamburg, and he came to Berlin later.
On the occasion of his visit in Nurnberg, it was the first time I saw him in my life. Now, it not only practically impossible that I would have a photograph of his, but I didn't have it in fact.