Q. On the occasion of the visit be Mauthausen, did Dr. Rothenberger tell you in advance that he wanted in particular to review the sentences that had been issued?
A. Yes. I believe I mentioned that already this morning that befor we entered Mauthausen, Rothenberger told me that he Would be afforded an opportunity to question individual inmates.
THE PRESIDENT: You told us that. We recall your testimony on that.
Unliss it's something new, it's unnecessary to repeat it.
BY DR. WANDSCHNEIDER:
Q. Witness, the presiding judge pointed out to you this morning and asked you whether the witness in the concentration camp wore in the concentration camp on the basis of a legal measure undertaken by a judge, and you stated that in the main this not the case. Is it known to you that the so-called preventive custody which the Gestapo applied for arrests was regulated by a law from the year 1936?
Yes, by the so-called Protective Custody Decree.
Q. Were the criminal divisions in no way subordinate to Dr. Rothenberger at the time when he was Under-Secretary?
A. Division V and XV, not at all; and Division IV, only when he substituted when the minister was away. Then Rothenberger had to decide those cases which had to be decided immediately. This can be seen already from the Pleetzensee case.
Q. Thus, as such, the criminal division were not subordinate to him.
A. No.
Q. In regard to the other cases, Your Honor, which Hr. king mentioned here, the documents will be introduced as exhibit later on, and so far I have not yet had an opportunity to examine the exhibit sufficiently and discuss them with the defendant Dr. Rothenberger. Therefore, I would like to request, since in the course of the further taking of evidence and rebuttal witnesses will appear- I would like to postpone asking things about them.
I have no further questions.
THE PRESIDENT: Is the witness here in Nurnberg so that he can be recalled?
DR. WANDSCHNEIDER: Yes, yes.
BY JUDGE HARDING:
Q. Regarding this protective custody, you say these people talked to were under protective custody in Mauthausen under a law of the Reich, is that correct?
A. Yes, There was a law regarding protective custody--a law from the year 1936--and according to this law, the police was authorized, for preventive reasons, to arrest people, and that was the basis for their being in Mauthausen.
Q. They were not serving any sentence then imposed by a court at the time they were in Mauthausen?
A. No, they were not serving a term passed by a court. It was a police preventive measure in order to prevent that these people who had repeatedly committed offenses would again enter into conflict with the law.
Q. And they had already served their sentences as imposed by court before they were taken into this custody of the police, is that right?
A. Yes, that is how I see it.
Q. And at that time these 12 people who had served their sentences and had been taken over by the police--that met with the approval of the defendant Dr. Rothenberger, as I understand you?
A. Well--did not approve the concentration carp as an institution altogether, but first of all we wanted to achieve this: that it would no longer happen that a defendant was acquitted and then after acquittal the Gestapo arrested in front of the courtroom.
Q. Did I understand you to say that while he examined there 12 people that the procedure was something that Dr. Rothenberger found nothing wrong in your testimony?
A. In those cases too, he did not approve the fact that these people were in a concentration camp because we were of the opinion that only the administration of Justice should decide these questions of criminal law and nobody else. But according to the power conditions witting the State, as they happened to exist, out interest was first of all to remove the worst evils.
REDIRECT EXAMINATION BY DR. WANDSCHNEIDER:
Q. May I still ask two questions in connection with this, Your Honor? The first question, Dr. Hartmann, it this: Dr. Rothenberger and you know without doubt, that this was a.n evil and that is now it must have appeared a.t that time, and not only today?
A. Of course, every depriving of liberty without a court judgment was rejected on principle by Dr. Rothenberger. But one could not achieve all the principles one was aiming for at the time, but one had to see to gain back as much ground as possible for the administration of Justice.
Q. Therefore, was the situation sometimes for you and Dr. Rothenberger like this: that apparently you affirmed something with a similing face something which as a human being you had to disapprove of and reject?
A. I never saw that Dr. Rothenberger ever affirmed these things toward fair persons, but for reasons of power politics he had to accept them.
Q. Do you still remember who issued this decree of the year 1936 that introduced preventive custody by the Gestapo? Was it the Reich Ministry of Justice?
A. No, as far as I remember, it was the Reich Ministry of the Interior.
Q. Oh, I see, not the Reich Ministry of Justice?
A. No, the Reich Ministry of Justice was always against this exten sion of the competency of the police from t ho very beginnings.
BY JUDGE HARDING:
Q. Did he take any action upon his return with regard to this decision that you know of?
A. In regard to abolishing concentration camp altogether? Is that what you mean, Your Honor?
Q. No, but with regard to this situation he went down to investigate.
A. Well, at this time, the only question for him would have been now to aim at dissolution of concentration camps altogether. But that would have been a failure from the very beginning because for reasons of power politics it would have been absolutely impossible to succeed with Hitler against Himmler to remove the concentration camps from the side of the Administration of Justice against Himmler's wishes.
Q. My question was, did Dr. Rothenberger take any action whatsoever of any kind upon his return from this inspection that you know of?
A. No, I don't know anything about that.
BY THE PRESIDENT:
Q. May I ask you, you used the words "preventive custody," did you intend to make any distinction between "preventive custody" and protective custody?"
A. I saw it, but we were not involved in the center of these matters these two concepts are identical, as far as I understand it.
Q. We will have your other witness.
MR. LA FOLLETTE: If your Honor's please, I simply would like to check the record. I stated a question. As I recall, the witness answered in response to me that he did not know anything about Theresienstadt. In response to Dr. Schilf, he gave the exact location of it. I would like either for the Court or that I be permitted to interrogate the witness and ask him which is correct. That is all I want to know.
THE PRESIDENT: The Tribunal is not going into it. He simply said this last time that he knew where it was. Before he said he didn't know anything about the place.
MR. LA FOLLETTE: Is that the Tribunal's understanding? That was my opinion.
THE PRESIDENT: I think that is what the record shows. We are not infallible, but that is according to my recollection.
MR. LA FOLLETTE: If we have time, I would like to call the witness Gramm, Your Honor.
THE PRESIDENT: Are the other witnesses here who were expected for the defense?
THE PRESIDENT: Dr. Wandschneider, have you your other witnesses here?
DR. WANDSCHNEIDER: No, not yet.
MR LA FALLETTE: This witness had been previously sworn before the Tribunal. He testified of behalf of the defendant Schlegelberger.
THE PRESIDENT: Witness, you have already been sworn, haven't you in this case?
A. Yes.
DR. HANS GRAMM, a witness, having been previously sworn, testified as follows:
REDIRECT EXAMINATION BY MR. LA FOLLETTE:
Q. State you name, please.
A. Doctor Hans Gramm.
Q. And for what years were you the adjutant of Dr. Schlegelberger?
A. 1936 until 1942.
Q. I have handed to you Prosecution Exhibit 197, which is further identified as 632-PS. Do you find that that exhibit has a number on it?
A. This exhibit has a number in the center--- 1942, No. 66.
Q. From your knowledge of the way in which Fuehrer Orders were prepared -- I withdraw that. That is a Fuehrer Information, is it not?
A. Yes, that is a Fuehrer Information.
Q. From your knowledge f the way in which Fuehrer Informations were prepared while you were adjutant for Dr. Schlegelberger, I ask you whether or not a Fuehrer Information could receive a number before it had been approved by Dr. Schlegelberger?
A. No, The Fuehrer Information before they were written and numbered were submitted to Dr. Schlegelberger for his approval, his suggestion of the individual department.
Q. And is it correct that there was an original and two or more copies make of each Fuehrer Information sheet?
A. There was an original and as far as I recall not only two, but four--
Q. Will you tell us---
A. Or five copies.
Q. Will you tell us what went with the original and these copies, to the best of your recollections who received and what happened to them?
A. The original was signed by Dr. Schelegelberger and was destined for Hitler. Copy number one was also signed by Dr. Schlegelberger and was sent to Bermann; and copy number two was also signed and went to Lammers. The rest of the copies remained in the ministry of justice.
Q. Were the copies which remained in the ministry of justice signed?
A. Copy number three was not signed, neither number four, it is possible that one copy and in this case it must have been number five, was retained as a document in Dr. Koch's office who was in charge of the handling of these Fuehrer Informations -- the technical handling.
Q. Thank you very much. How, you left when in 19 -- the ministry when in 1943?
A. In February, 1943 I left the ministry and became a soldier.
Q. During the time that you were in the ministry, did you know anything about the Attitude of Gauleiter Koch of the Ukraine towards the political reliability of people who were sent to serve under him in the Ukraine; did you know anything about it?
A. I know only that Gauleiter Koch was considered as politically very wild and a convinced National Socialist, and that among his assistants he did not approve of anybody in his surroundings whom he did not consider to be politically reliable and recognized politically by him.
Q. I ask you whether or not in your opinion it was possible that the name of a man would have to be approved by Dr. Koch before he could go even for investigation.
A. I should assume so.
Q. Were you acquainted with the methods by which the president of the Special Courts were appointed and re-appointed?
A. I don't know what method you are referring to.
Q. Well, I ask you, if I may ask you this: From your observations from the time you spent in the ministry of justice, and as Dr. Schlegelgerger's adjutant, was it possible to re-appoint a man as judge of the special court of Stuttgart if there was constant complaints to the ministry by the Gauleiter having control of that area that the man was politically unreliable; or that his sentences were not severe enough?
A. I can only answer that in a general way because I don't know the condition in Stuttgart; but according to this I consider it impossible that a presiding judge of a Special Court against whom political complaints were uttered repeatedly was again appointed for this position.
Q. Nor from your experiences would you think such a man would have been selected for presentation to Gauleiter Koch; is that right?
A. I consider that impossible.
HR. LA FOLLETTE: That is all.
THE PRESIDENT: Does any Defense Counsel desire to cross examine? The witness is excused, there being no cross examination.
Just a moment. Do you desire to cross examine?
DR: BRIEGER: Yes, Your Honor.
THE PRESIDENT: The witness is not excused.
BY DR. BRIEGER: (Attorney for the defendant Cuhorst)
Q. Witness, in regard to the defendant Cuhorst, do you have any exact reasons to believe that the personnel file of Cuhorst was sent to Gauleiter Koch?
A. No, I only answer the question as to the appointment of officials for Gauleiter Koch in a general way: that was how the question of the prosecutor was framed.
Q. The representative of the prosecution put the so-called Fuehrer Information to you which concerned a court in Stuttgart and was actually sent out. I only have one question to you in connection with that, and this is it:
Do you have any reasons for believing that the sentence pronounced in Stuttgart, which is cited there, was pronounced while Cuhorst was presiding judge or that he participated in it at all in any way?
A. I have to answer this question in a negative way because the Fuehrer Information doesn't tell anything about it.
Q. A further question. In what order were the presiding judge of the special court appointed? In what sequence?
A. I am not exactly informed about this every well because it did not belong to the sphere for business of Dr. Schelegelberger, but I would like to say that I recall that the appointment lasted each time for one year.
Q. Do you know anything about this; namely, that the Gauleiter or any other party office had to interfere in the renewal of the appointment?
A. I don't know anything about that.
DR. BRIEGER: Thank you very much, witness.
THE PRESIDENT: Is there any other examination?
MR. LA FOLLETTE: There is no - re-direct.
THE PRESIDENT: It appears there is no further cross examination and no re-direct. The witness is now excused.
MR. LA FOLLETTE: If your Honors please, Document NG-926 was indentified as Prosecution Exhibit 565. I now have the document in English and German, and I offer the exhibit in evidence, and the English and German copies for distribution. That was in the cross examination of the defendant Barnickel.
THE PRESIDENT: The exhibit was marked for identification 565?
HR. LA FOLLETTE: Yes.
THE PRESIDENT: It is now received.
MR. LA FOLLETTE: There is noe minute remaining, and the Prosecution can't offer much in that time, Your Honor.
THE PRESIDENT: Perhaps we can consume it. Gentlemen, it is obvious from the experiences of the last few days that the testimony at this stage of the case, in which you are very naturally trying to clean up the odds and ends, has a tendency to result in a great deal of cumulative testimony. We hope that counsel for both sides will avoid this and will limit their testimony to essential matters which have not been covered so far as they can.
We will recess now until tomorrow morning at 9.30.
(The Tribunal adjourned until 0930 hours, 18 September 1947)
Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Altstoetter, et al, defendants, sitting at Nurnberg, Germany on 18 September 1947, 0930-1630, The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom.
THE PRESIDENT: Let the proper notation be made.
MR. KING: The prosecution calls at this time the witness Judge Walter Buhl, B*U*H*L, from Hamburg.
JUDGE WALTER BUHL, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and be sworn. Repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath)
You may be seated.
BY MR. KING:
Q For purposes of the record, Dr. Buhl, will you give us your full name and present address?
A Walter Johannes August Buhl, Hamburg-Bergedorf, Nettelnburg, President of the District Court of Appeal at the Hanseatic Court of Appeal; born 9 April 1899 at Hamburg.
Q Can you tell us, Dr. Buhl, what your position from, let us say, 1933 until the end of the war was in the Hamburg judicial system?
A From 1929 on I was Regierungsrat in the District Justice Administration of Hamburg.
Then, in 1933, I again became a judge at the local court of Hamburg, and I remained in that post until 1 December 1946, when I was promoted to the position of a judge at the District Court of Appeals.
Q Yes. Were you a member of the Party prior to the-
A Since 1 May 1937.
Q To your knowledge, Judge Buhl, were your colleagues and other members of the Justice Administration in Hamburg submitted to pressure to join the Party beginning with the rise to power in Hamburg?
A Yes. In 1933 the members of the District Justice Administration, the judges and the officials of the Administration of Justice, were requested to join the Party. This request was in part oral and in part it was a written request by way of certain circulars which were issued. I know of it specifically only as regards the Justice Administration of the District. The request was issued to its members at the time to join the Party.
Q At least in the early stages, from 1933 until the date you joined the Party in 1937, who was responsible for the pressure on officials in the Administration of Justice in Hamburg to join the Party?
A That was the then Senator Dr. Rothenberger, who was the Chief of the Administration of Justice and who attached importance to having all members of the Administration of Justice join the Party, as far as their joining the Party was possible, that is to say, as far as they were not persons of mixed race or that they did not belong to the Free Masons Lodge and were not permitted to join the Party.
In 1933, however, no pressure was exerted on me personally, for example, because I was perhaps not quite eligible to join the Party. Dr. Rothenberger knew that and therefore he refrained from urging me to join the Party.
Q Did Dr. Rothenberger's attitude concerning you change later, some time prior to thee time you actually joined in 1937?
A No.
Q Was the campaign on the part of Senator Rothenberger to have members of the Judicial Administration in Hamburg join the Party--was this campaign intensified about the time you joined, in 1937, according to your best recollection?
A Yes. However, the effort that was made at that time was that all members should join, and we were told that those who did not join the Party would have to go and see Dr. Rothenberger and tell him the reasons for not joining the Party. To all of those who had any political misgivings, that meant that they would have to join because otherwise they would have to express these political reasons, and due to the situation at that time, that was impossible. I also know that some of my colleagues made personal visits, but I do not know what the result was. In any case, all of them joined the Party.
Q Do you understand what is meant by the "Fuehrer principle"?
A Yes, I do.
Q Will you tell the court just briefly what your conception of the Fuehrer principle is?
A The concept of Fuehrer principle is that nobody takes over responsible leadership and in accordance with his own ideas and attitudes, exerts certain guidance. Somebody becomes the chief and assumes responsibility towards the outside for everything that goes on in his agency.
Q To the best of your knowledge, based on your observations, did Rothenberger apply the Fuehrer principle in the Hamburg Administration of Justice?
A Yes, he was the Chief of the Administration of Justice and the leader, and he absolutely considered himself to be the leader of the Administration of Justice and was regarded as such too.
Q Do you know when Rothenberger joined the Party, officially at least?
A Yes. Before 1933, as far as I know-
Q You say before 1933?
Before 1933, in my opinion, he did not belong to the Party. At that time there was some talk about the fact that on the day when he became Senator he joined the Party, and then his joining the Party is supposed to have been pre-dated.
Q Do you have any idea as to why his membership in the Party was back-dated?
A Well, of course, I have no knowledge about that, but I assume it was because Dr. Rothenberger, before 1933--after he had left the Administration of Justice as District Court Director--had made contact with the NSDAP, especially with the later Gauleiter Kauffmann, and I believe he also worked for the latter somewhat at that time. At least, the public knew about that from some expert opinion that was issued in some kind of a civil suit, and at that time it became known that Dr. Tothenberger was the author of this expert opinion for the NSDAP. However, I know no further details about it any more, but I assume that was why the membership was pre-dated for that time later on, because at that time his close contact with the NSDAP began. However, those are pure assumptions on my part.
Q Yes. Judge Buhl, is the name Fuhlsbuettel familiar to you?
A Yes.
Q What is it, please?
A Until 1933 Fuhlsbuettel was a prison institution; it was partly a jail and partly a penitentiary.
Q Can you give the history, the subsequent history after 1933, of this prison?
AAfter 1933 a part of this prison was handed over to the police in order to enable them to put their prisoners there, because the number of their prisoners after 1933, and particularly in 1933, increased considerably and there was no other place to put these many police prisoners.
Therefore, part of Fuhlsbuettel was placed at the disposal of the police in order to put their prisoners there.
Q: You have heard the term "concentration camp", of course. Would you say that prior, or subsequent to 1953, Fuhlsbuettel was operated very much along the lines of a concentration camp?
A: Yes. Of course, one has to distinguish between the prison that was subordinated to the Administration of Justice, and that institution which was subordinated to the police. As far as the prison was concerned, it was an Institution for prisoners who were subordinated to the Administration of Justice; and as far as that part is concerned which was subordinated to the police, this institution became a concentration camp institution, which later was transferred to Neuengamme. However, I cannot say with certainty when that took place, and I don't know whether the concentration, camp at Fuhlsbuettel was dissolved with this transfer or whether it continued.
Q: Neuengamme was a recognized concentration camp, operated as such, near Hamburg; is that right?
A: Yes. Neuengamme was a large concentration camp which existed until the surrender, and it is an internment camp today.
Q: Judge Buhl, did you ever hear of any instances of mistreatment of prisoners -- the political prisoners, the police prisoners -- in Fuhlsbuettel?
A: Yes; about police prisoners, yes, but not about prisoners in detention pending investigation. As early as 1955 police prisoners were mistreated in the City Hall and also in Fuhlsbuettel, and that, at that time, was the terror which was exerted upon the population through the then Commando ZBV, that is, "Zur besonderen Verwendung, for special purposes, which picked up these people and interrogated them. During these interrogations there were abuses, and sometimes serious abuses, and on occasion people were tortured to death.
Q: Do you recall any specific instances of more notorious character that you could tell us about?
A: Well, most of these things were rumors current among the population. A few cases are known to me personally. One is the case of Buch from Neubruecken, and Neubruecken is a place which is adjacent to where I live. This mam was tortured to death, and was burned, without his relatives being afforded an opportunity to see his corpse.
A second case is known to me from Volksdorf, where somebody else was tortured to death in 1933. His relatives were also forbidden to open the coffin, and he was buried that way, without the coffin being opened.
Concerning mistreatments, I personally know one case through a friend of mine who was also in protective custody in the City Hall for a short time in 1933. He was put in with another man, who at first considered him a police informer, but who then got into a conversation with him, and, after some inhibitions, later, when he was asked about abuses, raised his shirt and showed this friend of mine that his body was completely beaten up and black and bloody.
Moreover, I also know that people who belonged to the parties of the left were mistreated in part, at that time, because they wanted to get confessions from them. However, names of people of that kind are not known to me personally.
Q: You say the incidents which you have described were -- that is, that was fairly common information, at least among the members of the Judicial Administration in Hamburg?
in Hamburg?
A: Yes, that was known not only among the Administration of Justice but among the entire population, because that was the system which was initiated in order to exert pressure upon the population and in order to remove political resistance by means of this terror. Therefore, every political resistance movement was killed at the beginning, and nobody dared to pronounce any criticism because they would run the danger of being put into protective custody and then mistreated. In this way the population was made afraid, and the aim was to make political resistance impossible.
That was the system that was introduced against political opponents in 1933. That was not a secret here in Germany, that was a well known fact, because the Commando ABV-- that was the predecessor of the Gestapo -was extraordinarily feared for that very reason. If it were only a question of putting people into prison, some political fighters would have put up with that. However, more was connected with it; there were the serious tortures and the danger to life that were connected with these arrests.
Q: Is it conceivable to your mind, Judge Buhl, that at this time the knowledge of these abuses, tortures, and murders did not come to the attention of Dr. Rothenberger? Is it conceivable that he could not have heard of those things or did not hear of them?
A: No, I don't consider that to be possible, because he must have known that too.
Q: You mentioned a moment age, Judge Buhl, the term "protective custody".
A: Yes.
Q: And you said there were numerous instances of protective custody in Hamburg that came to your attention. Now, may I ask you, concerning that general problem, was it common knowledge among at least the members of the Judicial Administration at Hamburg that there was such a practice as protective custody?
A: Yes, this protective custody was exercised generally at that time. Allegedly, it was said that it was done in order to protect the people against the rage of the population, and there were alleged cases of corruption at that time. For a long time this protective custody was handled quite arbitrarily by having officials of the police take people into custody and leave them there until they considered the right moment had arrived for releasing them. What we, in our judges' circles, were quiet angry about at the time was that this protective custody was exercised after a judge who had seen a prisoner in order to decide whether he should be kept under arrest or not -- had decided that this man was to be released, and the person concerned was then taken into protective custody by this Commando ABZ. At that time we were still under the impression, or had the entire concept, that the judge was the only person who was to decide about the liberty of a person, and this method, persisted in by the police, of course aroused justified anger among us judges because we considered that absolutely illegal.
Later on this protective custody was somewhat regulated. Certain instructions were issued, according to which the Chief of the Gestapo was competent for issuing the warrants of arrest.
These warrants for protective custody, after a certain time, were supposed to be reviewed by him. However, as far as I remember, this happened many years later.
Q: Now, prior to the time, Judge Buhl, that a slight tinge of legality was given to the practice of protective custody, do you consider it unlikely that the practice of protective custody in Hamburg could have continued as you know it did without some sort of understanding between Senator Dr. Rothenberger and the head of the Gestapo, Streckenbach, in Hamburg?
A: Of course, it is very difficult for me to answer this because I do not know at all what went on at that time between the Administration of Justice and the police and what agreements were made between them. I can only conclude that as to the manner in which protective custody was practiced at that time, the Administration of Justice was powerless against it. Whether this was due to an agreement, or whether the political line that was followed by the Party and the police was stronger at that time -- it must have been that; it is very difficult for me to evaluate these different conclusions.
Q: Do you believe that it would have been impossible or improbable, I should say -- do you believe it would have been improbable that Dr. Rothenberger did not know of the practice of protective custody as it occurred in the period which you are discussing?
A: Dr. Rothenberger must have known that, because it was a matter of general knowledge that protective custody was practiced by the police.