31 August 1942 and that the first death sentence was passed on that day Exhibit 313 (NG 226) Freisler, then President of the People's Court, wrote Thierack in October 1942 that, in view of proposed expansion of People's Court jurisdiction over NN cases, Thierack should realize this was done in first place because of the necessity in NN cases that sentences demanded by the Prosecution and passed by the Court should under no circumstances diverge.
A subsequent letter to defendant Lautz and other prosecutors, from Thierack, information copy to defendant von Ammon, established an expanded jurisdiction of People's Court over certain NN cases.
Exhibit 314 (NG 255) In response to several inquiries from Prosecutors at Special Courts in Hamm, Kiel and Cologne, citing specific cases, defendants Mettgenberg and von Ammon replied that in view of regulations for keeping NN trials absolutely secret, defense counsel choses by NN defendants could not be permitted.
Exhibit 315 (NG 271) Foreign Countries Department of the Wehrmacht High Command reported to defendant von Ammon, in October 1942, a list of 224 allaged French "spies" arrested in France in execution of the socalled "Action Porto"; 220 of these had already been transferred to Germany.
A later directive (Exhibit 316 NG 272) initialled by defendant Mettgenberg and sent to the SS Chief, Himmler revealed that such "Action Porto" prisoners were to be treated the same as NN prisoners; detailed orders were given concerning secret measures to be taken after the death of these prisoners.
Exhibit 309 (NG 708) The office of defendant Lautz, Reich Chief Prosecutor at the People's Court, in December 1942 indicted 2 Poles from Paris pursuant 9798-GG Court No. III, Case No. III to the NN order for having cached communistic pamphlets and arranged for their transfer to Germany for trial.
The trial was discontinued when it was discovered that one defendant, a woman student, already had "died" in auschwitz concentration camp while in pretrial detention, and the other defendant already had been shot by the SS without trial in a temporary "special detention camp". Before learning this, however, Lautz' office instructed prison officials as follows:
"The accused is not to be allowed to write or to receive letters, parcels or visitors. Care mast also be taken not to give any information in reply to inquiries by relatives which may reach the Prison concerning the accused."
Exhibit 318 (NG 267) The Attorney General of the Special Court at Essen, on 20 February 1943, notified the Ministry of Justice that NN defendants were being turned over to the Gestapo after either acquittal or service of sentence.
Exhibit 319 (NG 269) In an order initialled by members of Ministry Divisions III and IV (the defendants Mettgenberg and von Ammon), Division V (headed by defendant Engert), and Division VI (headed by defendant Altstoetter), all so concerned were directed to take further measures "in order not to endanger necessary top secrecy of the NN procedure," Separate copies of this order, dated 8 March 1943) were sent to the Chief Reich Prosecutor at the People's Court (defendant Lautz) and to defendant von Ammon.
These further measures included cessation of proper registration of births and deaths, impounding of any legacies or willed property, prohibition of farewell letters or any information to relatives or the press of deaths or executions, and transfer of corpses to the Gestapo for secret burial in unmarked graves.
Exhibit 317 (NG 253) On 9 February 1943, Department IV of the Ministry of Justice proposed a procedural change in NN trials whereby NN defendants could be deprived of defense counsel at the discretion of the presiding judge;9798-HH Court No. III, Case No. III.
defendants Mettgenberg and von Ammon, both of Department IV, approved this measure after which it was sent to various Special Courts trying NN cases, for comment. The President of the Special Court at Essen observed, in this connection, viz:
"The interests of foreign defendants can hardly be considered sufficiently important to justify continuous demands of this kind on staff and public funds." (See transcript p. 2460) Exhibit 320 (NG 256) In May 1943 Thierack informs Freisler that the Chief Prosecutor at the People's Court (defendant Lautz) has not been treating German nationals as NN prisoners, and consequently authorizes German nationals to have self-chosen defense counsel although NN defendants can not.
The directive is indorsed by defendant von Ammon.
Exhibit 381 (NG 204) A memorandum of 26 May 1943, addressed among others to defendant Mettgenberg, advised that a recent lecture by a RSHA official characterized the NN program viz:
"Nacht und Nebel' measures constitute in effect a renunciation.of regular procedures of criminal lawin the interest of a mere effective fight against anti-German activities in occupied territories."
Exhibit 321(NG 243)
A Ministry of Justice directive of 3 June 1943 states that foreign nationals of countries other than the occupied countries, are also being transferred into Germany and tried as collaborators with NN defendants from occupied countries. Separate copies of this directive were sent to defendants Lautz and von Ammon, and the original was initialled by several officials in Departments III, IV and V of the Ministry.
Exhibit 322 (NG 257) Thierack wrote to Kaltenbrunner, Chief of the SD in July 1943, confirming arrangements whereby corpses of executed NN defendants would 9798-II Court No. III, Case No. III.
continue to be transferred to the Gestapo for secret burial unless an anatomical institute wanted them for experimentation.
Exhibit 323 (NG 281) Defendant von Ammon, in Berlin 2 October 1943, wrote a memorandum to the Ministry files concerning a discussion he had with the defendant Lautz.
The question discussed was whether < r not NN defendants should have indictments translated into a language such foreigners could understand. As von Ammon wrote:
"It proved rather awkward that defendants learned the details of their charges only during trial. Also the interpretation by defense counsel is not always sufficient because their French mostly is not good enough and defendants were brought to the place of trial only shortly before it was held." (p. 99, Doc. Book VI).
Exhibit 325 (NG 282) A file copy of a Ministry of Justice survey, as of 1 November 1943, showed the following disposition of NN defendants:
a) Turned over by Wehrmacht tion to Special at Kiel, Court Essen, Prosecu- and Cologne:-----------5240 defendants
b) Indicted by Prosecution at above Special Courts and People's Court: ----- --1786 defendants
c) Sentenced by Courts enumerated in (b): ------------ 1230 defendants Exhibit 324.
(NG 216) In minutes signed by both of them, defendants Mettgenberg and von Ammon recount details of a conference they attended at The Hague on 2 November 1943, the purpose of which was to settle the method dealing with future Dutch NN defendants.
Mettgenberg spoke at the conference concerning the necessity of enforcing Hitler's NN decree strictly, and as to how Dutch defendants could be transferred to the Essen Special Court for trial. Both Mettgenberg and von Ammon emphasized the need for close liaison with Wehrmacht occupation forces on these Dutch cages, as was already being carried out concerning French and 9798-JJ Court No. III, Case No. III.
Belgian cases. En route back to Berlin, they consulted the defendant Joel at Hamm; he favored housing additional Dutch NN prisoners in his area (Papenburg). Copies of the entire minutes regarding the above were submitted, among others, to the State Secretary (then the defendant Rothenberger) and to defendant Engert.
Exhibit 448 (NG 294) A secret letter of 29 December 1943 to defendant von Ammon from the Presiding Judge and Chief Prosecutor of the Hamm Court of Appeals, notified von Ammon of an imminent conference concerning transfer of NN trials from the Netherlands to the Essen Special Court.
Exhibit 447 (NG 237) In answer to objections by the Chief of the SD that a transfer of NN cases arising in France from Cologne to Breslau for trial would cause insuperable transportation difficulties, a letter of 18 January 1944 indorsed by defendants Mettgenberg and von Ammon insists that the transfer is necessary and directs its accomplishment.
Three days later a letter indorsed by Mettgenberg (Exhibit 446, NC 222) informed Himmler that this transfer of French NN cases had taken place.
Exhibit 329 (NG 233) The Minister of Justice, on 21 January 1944, wrote to the Chief of the OKA Legal Department (the witness Lehmann) requesting clarification of why the OKA Courts Martial in Belgium and France (who had jurisdiction over NN cases if a death sentence were immediately possible - see Lehmann testimony, transcript p. 2859) were at variance with the Special Courts in Germany on certain technical legal points in NN cases.
This letter was referred to defendant Mettgenberg for approval.
Exhibit 328 (NG 205) On the same day, the Minister of Justice issued a decree supplementary to that referred to in Exhibit 318 (p. i supra), whereby all 9798-KK Court No. III, Case No. III.
NN defendants who were acquitted or who had served their sentence were to be handed over to the Gestapo; the Gestapo then decided what further treatment was to be given. A copy of this decree was expressly reserved for defendant von Ammon, and the decree was also mailed to, among other recipients, defendant Lautz and defendant Joel (then Chief Public Prosecutor at Hamm) as well as to the Chief Public Prosecutors at Nurnberg and Stuttgart.
Exhibit 326 (NG 203) The attorney General at the Breslau Special Court, in a letter to the Ministry of Justice, requested that defendant von Ammon be made available for a conference in Breslau between 15 and 31 January 1944, concerning methods of handling NN trials.
Von ammon, after permission of defendant Mettgenberg, in fact attended the meeting on 29 January 1944, and reported results including a decision allowing the Prosecution to file NN indictments at once without prior Ministry approval, and an abridgment of reports on pardon requests in NN cases involving death sentences. A final letter from the Ministry to the German military Commander in France requested support in a plan for closer liaison between the addressee and the Breslau Special Court in NN cases, and proposed to appoint defendant von Ammon as a delegate at future meetings in Paris on the subject.
Exhibit 330 (NG 240) Defendant Joel, then attorney General at Hamm (26 January 1944), reports to Thierack suggestions for greater speed in trying NN cases, based on Joel's experience in such matters at the Essen Special Court in his district.
Joel's principle suggestion was that the Chief Reich Prosecutor at the People's Court (defendant Lautz) should turn over NN files for trial by Special Courts immediately unless it was certain that the People's Court would soon try the cases. Subsequent indorsements referred this matter to defendants von Ammon and Mettgenberg indicating they had conferred thereon.
9798-LL Court No. III, Case No. III.
Exhibit 504 (NG 1046) The defendant von Ammon attended conferences with Public Prosecutors in Breslau, and Kattowitz (Poland), on 18-19 February 1944, concerning housing of NN prisoners and possibility of transferring NN cases from the Netherlands, Belgium and Northern France to Special Courts in Poland for trial; von Ammon reported the results of these conferences in detail to, among others, the defendant Klenrn (Under Secretary), and personally wrote on his report that he had secured appropriate Gauleiters' concurrence to the proposed transfer.
Shortly thereafter the Ministry of Justice issued a decree indorsed to the defendant Mettgenberg for signature, and submitted twice to von Ammon for information and co-signature, whereby these Dutch, Belgian and Northern French NN cases were to be transferred to Silesia for trial. In response to this decree, von Ammon was personally notified that the defendant Joel (then General Public Prosecutor at Hamm) feared objections from the Wehrmacht because of the longer transportation involved in the transfer.
Exhibit 331 (NG 230) Dr. Huelle (Gen.
Lehmann's subordinate in the OKW Legal Department (see Transcript pp. 2628-2633, and Exhibit 381, NG 204) sent defendant von Ammon an information copy of his letter to the German Foreign Office, dated 4 April 1944, in which Huelle comments on two notes from the French Ambassador and French Secretary of State. In face of these presumed French complaints, Huelle reiterated the essence of the NN program as enforced to date, and re-affirmed that the death penalty was being inflicted on such foreigners for political reasons on principle.
Exhibit 332 (NG 231) Defendant von Ammon reported, on 24 April 1944 details of his trip to Paris (referred to previously in Exhibit 236, NG 203). This official visit served particularly to obtain information about the German 9798-MM Court No. III, Case No. III.
security position in France and to test whether the criminal NN procedures of the Breslau Special Court (which tried NN defendants from France see Exhibit 326, p. o. supra) were approved by the Army. This meeting occurred in the office of the Chief Justice to the German Military Governor of Paris, General von Stulpnagel. Von Ammon submitted this report both to defendants Klemm and Mettgenberg, who initialled it (see Transcript p. 2489).
Exhibit 333, (NG 262) Similar to Exhibit 325 (p. (1) supra) but dated 5 months later, another survey of NN proceedings as of 30 April 1944 showed that of a total of 6,639 NN defendants transferred by the OKW to various Special Courts and the people's Court in Germany, 3,624 were indicted and 1,793 were sentenced.
1 Defendant von Ammon initialled this survey (see Transcript p. 2489, 90).
Exhibit 334 (NG 264) In a file of reports for the years 1943-44 of NN cases still pending in the Ministry of Justice, the Attorney General at Kattowice (Poland) stated to the Ministry the following.
"NN - (Nacht und Nebel) Prisoners held within the jurisdiction of the Court of Appeal of Kattowice are already employed to a large extent in the armament industry, regardless of whether they are being held for questioning or punishment, They are quartered there in special camps at or near the place of the respective industrial enterprise. In this way it is intended, if possible, to place all NN-Prisoners at the disposal of the armament industry.
"It has been disclosed that the NN-Prisoners already employed in the armament industry, as for instance the 400--odd prisoners working in Laband, have done a very good job and excel in particular, as skilled workers. The armament industry, therefore, wants to retain the employed NN-Prisoners also after their acquittal or after they have served their sentence.
1- Undisposed cases here are meaningless, because by that time NN defendants were being transferred to the Gestapo after either acquittal or service of sentence (Exhibits 318 and 328, supra; see also von Ammon affidavit, as quoted on p. (d) supra).
9798-NN Court No. III, Case No. III.
"I ask for a decision on whether and, if so, how that demand can be complied with. Considerable doubts arise from the fact that there is no legal right to confine them further and that the judicial authorities would thus take preventive Police measures. There is the question, however, whether the situation of the Reich does not, justify even such extraordinary measures." ("see p. 148, Doc. Book VI) This request was handled by defendant von Ammon, who indorsed it as follows:
"Submitted...first to Department V (headed by defendant Engert*) with the request for an opinion If you have no objections I intend to contact the RSHS in accordance with the report of the Attorney General at Kattowice." (see p. 149, Doc. Book VI) Exhibit 327 (NG 247) Defendant von Ammon wrote Martin Bormann, Hitler's Deputy, on 14 June 1944 requesting permission to inform NN women defendants under death sentence of their reprieve, if and when a reprieve was granted, since he thought it unnecessarily cruel further to keep condemned woman in suspense for years as to whether their death sentence would be carried out.
Exhibit 335 (NC 261) Defendant von Ammon reported on a conference with German occupying forces of Belgium and Northern France, held in Oppeln 29-30 June 1944.
Von Ammon stated that since the Allied invasion had not caused undue tension as yet, it was unnecessary at that time to make penalties in NN cases more severe. This report was initialled by defendant Mettgenberg.
Exhibit 416 (NG 737) In the fall of 1944 Hitler ordered the discontinuance of NN proceedings by the Justice and OKW courts, and transferred the entire problem to the Gestapo, the NN prisoners being handed over to the Gestapo at the same time.
In subsequent conferences attended by de * Insert added 9798-00 Court No. III, Case No. III.
fendant von Ammon, the Ministry of Justice agreed to and later actually carried out the transfer of its NN prisoners from Reich prisons to Gestapo custody. The defendant lautz was ordered to suspend People's Court proceedings against NN prisoners and transfer them to the Gestapo. The witness Hecker deposed that those NN prisoners in the Berlin district, of which he had knowledge, were sent to Oranienburg Concentration Camp.
From the foregoing evidence it appears that the following defendants were connected with enforcement of the Nacht und Nebel program, listed here in descending order of their degree of participation and/or responsibility:
Schlegelberger von Ammon Mettgenberg Lautz Joel Engert Rothenberger Klemm Altstoetter 9798-PP AFTERNOON SESSION (The hearing reconvened at 1330 hours, 14 October 1947)
THE MARSHAL: The Tribunal is again in session.
MR. KING: He have one comission to note which occurred in the transcript from, which we read. I will just -- It is Footnote 125-A that follows after the last sentence under the Treason and High Treason subject.
THE PRESIDENT: What page?
MR. KING: 131 of the English, and I am trying to describe it so that it can be located in the German text. It is the treason and high treason discussion concerning the defendant Rothenberger, at the end of that sentence, the Footnote 125-A should appear, and that Footnote is 125-A, 4716-17.
THE PRESIDENT: Thank you.
MR. KING: He should also like to ask the Court to request that the four or five pages which we did not read, but which we asked permission to file, will be incorporated in the transcript of the record for this morning's session.
THE PRESIDENT: I understood that that was agreed by both parties and it shall be done.
HR. LAFOLLETTE: Just one further statement. The Prosecution wishes to state that if any defense counsel are reading from prepared speeches and the time should expire that the Prosecution will have no objection to those speeches being also filed and made apart of the record, whether read or not.
THE PRESIDENT: Very well.
DR. KUBUSCHOK: Your Honors -
THE PRESIDENT: May I interrupt you a moment before you begin. There are no English copies for the Tribunal?
DR. KUBUSCHOK: No.
THE PRESIDENT: All right. Go ahead; we will get it later.
DR. KUBUSCHOK: One copy is already in the hands of the interpreter; I don't know whether there is any possibility to get further copies.
14 0ct.-A-BK-13-2-Sampson (Int. Steuer) May it please the Court:
Your task, Your Honors, is certainly without precedence in history. You have to judge the acts of men who once represented -- although the Prosecution's principle of selection is not always clearly discernible the entire administration of justice of a country, its administrative as well as its judicial side. You have to base your judgment on a law, which is altogether novel in its very concepts, quite apart from all the other problems it raises. This alone demonstrates, how difficult even your first task will be, which consists in satisfying yourselves, whether in the individual cases on trial the provisions of the law were in fact violated or not; but the difficulties will become gigantic, when the question has to be examined whether the guilt in the sense of the generally accepted legal principles can be attributed to the defendants. The situation is altogether different from the usual one, where objective facts, which can be ascertained in accordance with the established concepts of law and jurisdiction can without difficulty be related to the person of the perpetrator and thus are easily to judge. When examining the question whether the perpetrator, when he decided to commit the act, was a free agent within the meaning of the Penal Law or whether the act can be justified by the perpetrator's personal circumstances and the general conditions to be evaluated by him, the Judge usually is guided by his knowledge of the general and special conditions in which the perpetrator lived. Things are altogether different in our case: individual acts of the defendants will always involve the Administration of Justice as a whole. This again cannot be separated from the entire administration of the Reich. There we find a fact which we must understand fully and especially with regard to distribution of power, if we want to pass a just judgment; I mean Adolf Hitler's Dictatorial State. The defendants lived and anted in this dictatorial state. If we want to understand this in all its details, we must exclude all experiences and concepts either to accepted as customary and try as it were to live in an altogether different world.
I know how difficult this is. Even we, who ourselves witnessed this world and lived in it, find it now often difficult to recall even imperfectly the day-to-day situation in an epoch subject to constant development. It is even more difficult to judge an individual act of a man in that time. What was a man confronted with at that time? Or an even more difficult question: How could he evaluate the development of the past and of the present and what conclusions could he draw, from this and from other knowledge, as to future developments? Was not all this conditioned by a mass of imponderables, which now cannot even be described by the defendant, and which can even less be evaluated by a third party? We must remember these difficulties if we want to find the right methods to establish the true picture of the facts which we need for a just judgment: The individual case can be of value for us only as a symptom, if we want to evaluate the defendant in fairness. The individual cases can only be the starting points for an evaluation of his conduct as a whole. As in all cases, our task of clarifying the defendant's motives will be facilitated by looking at his personality and life. In our case they will have an importance far in excess of what is usual, they will even be decisive In a state based on law and administered in accordance with fixed legal rules the question of the motive of an act objectively contrary to the law can only affect the extent of guilt. But things are different in a dictatorial state, the head of which does not comply with these rules of law and uses overwhelming power to reach his goal. In this state a mutual relation of interests exists which is not possible elsewhere. A threatening wrong, which otherwise could be redressed with the legal means at the disposal of the State becomes unavoidable, unless a lesser encroachment into the legal interests of the person in question is risked. The idea of necessity, which in all countries is recognized as an excuse, wherever an inescapable situation exists in relations between individuals, is thus transferred to the larger sphere of the State.
Here, too, a situation arises, out of which there is no other escape, because overwhelming power is not used for the prevention of the threatening evil, but on the contrary for its perpetration. To him, who is in a position to prevent the threatening evil, this poses the question of whether his encreachment is justifiable by what he can attain. His decision is therefore of a moral kind. This must be the basis for the decision on whether the perpetrator is guilty or innocent before the law, to take out case, on his guilt for war crimes and crimes against humanity with which the defendant is charged.
This result is no doubt at first sight surprising for the jurist. But is it not made inevitable by the complete lack of legal protection, creating in its turn an irremovable compulsion? But the intended purpose which went beyond the act itself, and the perpetrator's motives are fundamental for your decision also because the concept of the war crime and crime against humanity no doubt presupposes a certain attitude of the perpetrator. This general concept has been declared the constituent element of a punishable offense; since the law did not make the various crimes mentioned in the explanatory list subject to punishment, it follows that this law was intended to punish acts which were to be branded internationally and were to be prevented in future because of their special nature and the special danger inherent in them: crimes against human civilization as such, crimes against the human spirit as such. The perpetrator must have acted contrary to the eternal law of mankind itself. That the con-stituent elements of a crime against humanity are present can be established only if the perpetrator has shown himself inhuman by his deeds. This is automatically excluded, if the intended purpose of the act is justified ethically; i.e. by the moral law of mankind.
Therefore I shall shortly deal with Dr. Schlegelberger's person and work up to the time referred to by the indictment against him, before I deal with the period itself. Schlegelberger's personality lies before us upon and easily discernible. The qualities of this man become clearly apparent from his work. His life is a straight path leading up to the highest position attainable by an official in the Administration of Justice and by a jurist. After a fast rise, the result of his excellent qualifications, he soon took over special tasks of outstanding legal importance in the Administration of Justice. He became a first class specialist, universally recognized as such by all jurists and administrators, in his special fields of Commercial Law, in particular Corporation Law, and on the very difficult problem of valorisation. You will get an idea of Schlegelberger's eminence as a jurist from the list of his publications submitted to the Tribunal. His reputation far transcends the frontiers of his own country, his "Encyklopaedisches Handwoerterbuch" (legal encyclopedia) is a standard work for the legal profession all over the world. He satisfied his scientific leanings by writing a unique number of publications and by teaching the law as a Professor at the University of the Capital. As an administrator he attained in 1931 the highest position in the Mnistry open to a Civil Servant. As he had never been a politician, he did not desire the political post of a Minister. He was still in bis position, when Hitler assumed power on 30 January 1933. His work as Civil Servant in the Civil Law Section of the ministry had always been independent of the comings and goings of ministers of Justice chosen by the political parties; accordingly he remained in office also after the Hitler government had been formed. This decision was made all the easier for him, since the Reich Minister of Justice, Guertner, was not a man with a National Socialist past and had formerly been recognized by all Parties in his native country as blameless in his incorruptible conception of Law. Under him, Schlegelberger retained, his old field of work, Civil Law, until he was put as the Senior State Secretary at Guertner's death, in charge of the Ministry of Justice.
The substance of the Prosecution's charges deals with the subsequent 1½ years, when he was in charge of the Ministry. But in order to be able to systematize his acts during this time, to illustrate its points and to strengthen its case against the defendant, the Prosecution has included in the picture the events of the preceding years from January 1933 onward. The Prosecution wants to conclude from all this that Schlegelberger was among those who consciously and systematically helped, ever since 1933 to give the entire Administration of Justice a direction which necessarily had to lead to the final consequences of the last years of the Hitler regime. What evidence does the Prosecution produce against Schlegelberger up to 1941, when he was put in charge of the Ministry?
We find mainly documents which are intended to prove that Schlegelberger showed signs of a National--Socialist mentality and activity.
The defendant Schlegelberger hrs already made it clear on the witness stand that he occasionally signed documents in Minister Guertner's absence for him, but that in these cases he did not have to deal with the matters concerned and therefore could not give details on these matters, partly perhaps also because he could not remember the contents and the exact circumstances relating to the letters signed by him.
The first of all applies to Prosecution Exhibit 428, the letter deeding with political Catholicism. We do not know the antecedents leading to this letter. Certainly Guertner could not escape the pressure of a "higher authority". We would on no account be justified in assuming that the letter was in harmony with his own personal tendencies. Guertner had formerly been Minister of Justice in predominantly Catholic Bavaria and there his good qualities had been recognized by everyone.
He was himself a Catholic and strictly religious up to his death.
That the idea of a prosecution of Catholicism cannot be in any way connected with Schlegelberger himself, is shown by his action in the Horneff case, as is proved by Schlegelberger Exhibit No. 76.
Futhermore the prosecution has by producing documents brought Schlegelberger in connection with the People's Court. Occasionally during vacation periods he issued deeds of appointment for the lay assessors chosen by Hitler. Copies of the People's Court President's directives concerning the distribution of the lay assessors among the various Divisions was sent to all Government agencies and organizations. This, too, was an action outside his normal sphere of activity, which he explained in detail on the witness stand as being in the nature of a routine administrative act.
The speech made by Schlegelberger at the jubilee of the People's Court was a purely representative affair, which he could not avoid in Guerther's and Freisler's absence; also the contents of the speech warrants no conclusion as to possible national socialist convictions.
Finally the Prosecution has pointed out the fact that in Exhibit 520 Schlegelberger signed an ordnance concerning the reunion of the Eupen and Malmedy districts with the Reich. This document has in no way been brought into any relation with the charges of war crimes and crimes against humanity, which makes it unnecessary for us to go into details regarding this ordinance. This comparatively small border district had become subject to a special arrangement in the Versailles Treaty, the execution of which has been actacked in many reports. For the reason just stated I need not enter into the question whether the Fuehrer's decree of 18 May 1940 which forms the basis of the ordnance signed by Schlegelberger, constitutes an annexation or not. For completeness' sake I want to point out that according to the conditions of the Armistice Belgium unconditionally surrendered to Germany, without the latter ever expressly renouncing an annexation.
The decree concerning the border zones and its reference to preparations for mobilizations must be regarded neither as a political act nor as preparation for a war of aggression. It is routine administrative act referring to the event of a war as such for which provisions must be made in every country.
The Prosecution tries to characterize the Defendant Schlegelberger's person especially by pointing out the speech made by him at the University of Bostock in 1936. This speech makes it especially clear to us how difficult it is today to form a correct picture of the conditions prevailing at that time, which alone would enable us to interpret the speaker's intentions. It is too easily forgotten what a speech in public and the attainment of the aim pursued in this speech were altogether only possible it its style employed the National Socialist stock-phrases. Only when cloaked in this phraseology could a subject be brought up for discussion and could thereby be dealt with effectively.
During his examination Schlegelberger pointed out that in this speech his idea was to oppose a very dangerous opinion, which was advocated above all by Freisler, that the party program was an'overruling law which was binding for jurisdiction. This opinion undermined the entire hitherto existing basis of the law. Schlegelberger opposed this opinion. It would have been impossible to declare in public, that the party program must be rejected as an overruling law, because this or that point of the program was open to objections. Criticism could only start from objections of a technical legal character, The political attack implied in that had to be couched in national socialist phraseology.
Finally Schlegelberger is charged with having welcomed the transfer of the Administration of Justice to the Reich, which, it is said, can only be made understandable from a national-socialist mentality; to refute this I may refer to Mettgenberg, Exhibit 35, which proves that this transfer of the Administration of Justice to the Reich had, to mention only one example, been included in its program by the Social Democratic Party of Germany in 1921.
I may also ask you to remember what this transfer meant in practice, it concentrated, the entire Administration of Justice in the hands of a man like Guertner and took it out of the hands of the Laender, where the ministers in charge of justice were predominantly old National Socialists in Bavaria Hans Frank and Thierack in Saxony.
This is in all essentials the evidence from which the Prosecution thinks it can draw the conclusion that Schlegelberger had, since the beginning of the Hitler regime, tried to surrender the Administration of Justice to National Socialism, as far as he had the power to do so, and that the thus paved the way for the later developments. What the Prosecution has to say - and it can always only interpret phenomenais by no means sufficient to prove such an assertion; the charge is, in my opinion, clearly refuted, if we subject Schlegelberger's personality to closer scrutiny.
In his political opinions Schlegelberger belonged to the old bourgeois parties. In 1933 he did not follow the enemy example of the opportunist majority of the German Civil Servants: he did not become a Party member. Even for a subordinate official this would have been a recommendable profession of opposition, which could be easily taken amiss and in most cases was taken amiss; for a man who held the position of a State Secretary this was an emphatic disaproval of the national socialist "movement" which had now assumed power. We may even say, that a Civil Servant who was one of the leading officials of a whole Branch of Administration, by refusing to joint the Party became a symbol for this administration, both to the outside world and to the subordinate officials within this Branch of Administration itself. I feel, therefore, justified in saying that a Civil Servant who held the position of State Secretary, by deciding to become a Party member, sufficiently proved his inner anti-national socialist attitude.
What the Party thought about it is self-evident. Hitler ended this state of affairs in 1938, at least for the outside world, by issuing a special decree ordering Schlegelberger's admission into the Party without previously heard him about it; this is best suited to illustrate the situation. Hitler's political opinion of him is shown by the fact that the Party did not even make a show of honoring him, as it was done in similar cases, by bestowing the Golden Party badge upon him and thus giving him a position of honor in the Party, and that also his date of membership was not ante-dated as it was customary in other cases.
When we call to mind the pertinent statements of persons who were Schlegelberger's closest colleagues and arc best qualified to give an opinion of his political views, we stand on firm ground and can reject all the interpretations which the prosecution tries to give to external appearances. In that connection I refer to the affidavits sworn by persons, the majority of whom are best qualified to judge the position objectively, either because of their anti-Nazi convictions or from their residence abroad.
Finally, I should like to draw your attention to the following: The German judiciary under Guertner and under Schlegerberger in charge of the Ministry was the object of continuous propagandists attacks, which became more forceful as time went on. The entire propaganda in the National Socialist State was directed from the highest quarters. The editorial staff of the SS periodical "Das Schwarze Corps" was even under Himmler's special direction. Just that publication, as was mentioned repeatedly in this care, made special efforts to discredit the administration of justice up to Schlegelberger's last day in office. One has to try and imagine this really unique situation in the National Socialist "totalitarian" State: a press campaign against a certain part of the Reich Administration being carried on by the Party, i.e., in the last analysis nothing else but the Rational Socialist leadership of the Reich.