This has also been made entirely clear by NG-279, the Prosecution's document (Doc. Book III h, affidavit Kuemmerlein-Klemm, Exr. 376) and Klemm's testimony, page 4929 and the following of the English, and page 4850 and the following of the German transcript. The Reich Ministry of Justice of course interpreted the existing law and the existing legal situation from a purely dogmatic legal standpoint. Every jurist necessarily draws the conclusion that the exempt groups had to be treated differently than the Germans, due to the provisions of the law. On account of the fact that the law had been established previously, the juvenile law also could not be applied to Poles, Jews and Gypsies "according to its meaning". Klemm too could not deny this purely juridical deduction of the Reich Ministry of Justice.
During the time when Klemm was State Secretary, new legal provisions have not been suggested or made from any side, with one exception: The penal decree against Poles was amended by the decree of 20 December 1944 - Reich Law Gazette 1944, page 353 - to the effect that the minimum penalty was reduced from three years to one month. (Klemm's testimony, page 5015 and the following of the English and page 4932 of the German transcript). According to the evidence offered, therefore, there is no proof that Klemm in any way collaborated in the creation of special laws for members of other nations.
2. Now it remains to be examined whether Klemm has been guilty of a crime in the application of such special laws.
As far as the application of the penal decree against Poles is concerned, Klemm could have participated only during the time when he was State Secretary, from January 1944 until April 1945. In this case, he could only have participated in the resort which dealt with the granting of clemency. It has been established that, with respect to the decisions to be made there no distinction was made regarding the application of the legal provisions. As far as the question was concerned, whether a sentence had to be carried out or not, provisions were the same for Germans and Poles.
Added hereto is the fact that the penal decree against Poles played only an insignificant part at the time when Klemm was State Secretary. Only few sentences against Poles were submitted to the Ministry for examination. After the decision to grant clemency had been transferred to the Reichsstatthalter in all the incorporated Eastern territories, no sentences at all from this territory came to the Ministry. There remained only the few cases where Poles had been sentenced in the Reich territory. According to the testimony of the witness Oeschey (Page 8617 of the English and page 8261 of the German transcript), these sentences, already in 1943, were scarcely of any practical, importance. According to the testimony of the witness Lautz,(Engl. Trans, on page 5908, German transcript on page 5756), this special penal decree against Poles was not applied any more for the objective foundation of the verdicts. As a matter of fact, the Prosecution has not submitted a singular verdict of this kind against my client. No case can be shown either in which for example the Ministry has punished a Pole in 1944 on account of mere disobedience. The presumption that such sentences may once have been proclaimed at all in the Reich territory, is insufficient to prove the guilt in this respect. Concrete evidence would have been necessary to prove that at the time Klemm was State Secretary, any such decision of a German court had been approved by the Ministry. Nothing has been shown regarding any participation of Klemm in such a procedure. Even the witness Altmeyer could not mention any case which had been submitted to Klemm. (Page 5278 of the English and page 5180 of the German transcript). This emphasizes the correctness of Klemm's statements with regard to Exhibit 252, whereby out of the 85 cases which he has decided himself to, not a single case was submitted to him in which Poles had participated. My client was able to state the criminal criteria for each of the 95 cases, on which was based the granting of clemency. (Compare Klemm's testimony, page 15 0ct.
-M-BK-2-4-Gaylord (Int. Steuer) 4979 of the English and page 4897 of the German transcript.)
I interpolate. The day before yesterday the Prosecution quoted a name from the report list of 2 August 1944. The Prosecution hereby wants to prove that Klemm decided the Potemsky case. Klemn, however, on the 2nd of August 1944, could not decide on the Potemsky case because, no reports were submitted to him on that day. The list concerns Minister Thierack, which is evident from the fact alone that on this day reports on doubtful cases were made. The Prosecution has quoted the Lopi-Saki case from the list of 31 August 1944, although they do not say that this was Klemm's list. In both cases, the Prosecution bases its assertion that the Law against Poles was applied on the names. Such evidence is impossible. In Germany, as in the United States, foreign names are nothing unusual. The names are not of Polish origin. They may have been German names. Furthermore, the lists in question mention the Penal Law, which was applied in detail, in the case of Potemsky, Treason, page 63, under "B", Exhibit 252, in the case of Lopi-Saki, this is an unpolitical death sentence. Therefore it could have been a common murderer. The case Lopi-Saki as a whole was not decided on 31 of August 1944 but on the 31 of May 1944. (See Page 92 of Exhibit 252 under item 8, figure 7.
As far as the Administration of Justice in general is concerned, the following should be added: The Prosecution has not proved at all its assertion that inhuman severity has been applied against Poles. Exhibit 507, submitted by it - statistics of penal justice from the year 1942 - contradicts this.
I interpolate. The day before yesterday, the Prosecution indicated the year 1944 but immediately corrected this year. The cases mentioned in connection herewith cannot involve Klemn. The statistics 1942 proves it. Dr. Kubuschok yesterday indicated the absolute figure, and I will not indicate percentages.
It is shown hereby that, in accordance with the penal decree against Poles, only 1.5% have been sentenced to death out of 100 cases; 67.7% to simple disciplinary camp, and 26.6% to fines. 75.4% of the cases sentenced to simple disciplinary camp were under one year. This means that 51% of all those sentenced to imprisonment were sentenced to less than a year. These figures show that there can be no talk of an abnormal and criminal severity in general. If one compares this figure with the statistics regarding sentenced Germans, one cannot find a discrepancy in this connection.
Regarding the year 1942 - the Prosecution has not submitted later statistics, while it has not been possible for the defense to get the pertinent documents - a participation of Klemn, to be sure, is out of the question, but from it the conclusion may be drawn that Justice in general was applied moderately and that verdicts were humane. This may be applied fully to Klemm. His basically human and just attitude has been confirmed by a great number of witnesses on the witness stand. (Compare Miethsam's testimony, page 4882 of the English and page 4805 of the German transcript, Fritsche, page 5222 and the following of the English and page 5126 and the following of the German transcript, Ehrhardt, page 6372 of the English and page 6179 of the German transcript, Mettgenberg page 6313 and the following of the English and page 6123 and the following of the German transcript, von Ammon, page 6435 and the following of the English and page 6237 and the following of the German transcript, Hartmann, page 9024 and the following of the English and page 8644 and the following of the German transcript) and also by affidavits (Kuehne, Klemm Exh. 14, the Hohnstein documents, Klemm Exh. 19,20, 21; the witness Stagel, Klemm Exh. 6l; the witness Kriege, Klemm Exh. 63 2; the witness Bruns, Klemm Exh. 63 b; the witness Reichert, Klemn Exh. 64; the witness Wilkerling, Klemn Exh. 66; the witness Preiser, Klemm Exh. 69 and 74; the witness Willers, Klemm Exh. 70; the witness Proboese, Klemm Exh. 72;
Wogatzky, Klemm Exh. 75; the witness Rubold, Klemm Exh. 78; the witness Marx, Klemm Exh. 79 and last but not least the Dutch witnesses Tenkink and Hooykaas, Klemm Exh. 80).
Just as the general accusations of the Prosecution have not been proved in a single concrete case with regard to the treatment of Poles, the same is the case regarding the treatment of other foreigners. In this connection it must be added that, when Klemm became State Secretary, the Jews were no longer under the jurisdiction of the administration of justice, Officially speaking, he could neither intercede for nor against the Jews.
They were entirely excluded from criminal jurisdiction by the 13th amendment to the Reich Citizenship Law of 1943. I now interpolate:
In this connection I can also prove that the Prosecution, the day before yesterday, distorted the evidence serving as a basis in this respect. The Prosecution asserts that Klemm, when Ammom presented a report to him - Page 103, Exhibit 252 - had directed him to transfer stateless Jews to the Gestapo. If you will inspect the quoted portions, the result will be different altogether.
There was an abstract legal question involved herewith, that is, the legal question based on the 13th amendment to the Reichsbuergergesetz, the Reich Citizenship Law. No name is specified, no file reference. All that had to be decided was a general question of law. Without knowing facts, without receiving files, it is impossible to draw any conclusions. In any case, Klemm never told the Defendant von Ammon, "Transfer them to the Gestapo." There is no reasonable doubt whatsoever that the contrary has been proved. If the memorandum is read as per report list of 31 May, 1944, to the effect as it is submitted, no conclusions can be drawn which concrete case and which circumstances were discussed in connection therewith.
The further remarks of the Prosecution to this point in its final plea to the extent as these refer to Klemm's activity in Holland, cannot receive consideration by the Tribunal. In the indictment my client was not made any reproach in this respect. It is not permissible as has already been decided by Tribunal II, to supplement facts afterwards which were not mentioned in the indictment. But Klemm has no reason to avoid the discussion of his activity in Holland.
When questioned as a witness, after the rebuttal documents had been presented by the Prosecution against him, he commented on them in detail. The establishment of German courts involved only Reich Germans, not racial Germans, and to the extent that criminal proceedings were carried out against Dutchmen, these involved exclusively offenses against the Occupying Power.
Thereby the international law was not violated. Moreover, particularly in reference to Jewish business, Klemm endeavored to exercise mitigating influence as is proved by exhibits of the prosecution.
Moreover, as a witness he referred to the fact that Exhibits 6l5 and 6l6 contain his comments to drafts of law which drafts were not submitted by the Prosecution. It presented other decrees of the Occupying Powers which do not belong or touch these comments of Klemm's.
Exhibit 609 was a private affair. Wimmer, long after Klemm had left the Administration in H olland, submitted a private inquiry to him. Klemm originally notified Wimmer of his very personal opinion, Wimmer being his former superior. He had nothing whatsoever to do with management of personnel.
Only the Czechs were concerned as members of other nations apart from the N.N. matters with which I will deal at a later point. In this group, too, the prosecution could not show one single concrete case in which Klemm participated. In the only decision which might have caused criminal harm to a Czech citizen, the case of the Pole Nohawica (Exh. 567), no actual participation by Klemm in the decision can be recognized. The so-called Reich Protector in Bohemia and Moravia, who was the competent clemency authority for this Czech, states that Klemm had only temporarily repeated an already published general directive by the Minister for this actual case, without exerting influence on the case itself. By Hitler's decree, dated 25 January 1944 - Reich Law Gazette 1944 paga 59 - the clemency authority in cases against Czechs had been transferred to the Reich Protector, even in those cases in which sentence had been passed by a Court in Germany. (Statement Klemm Tr. Engl. page 9390 et seq., German page 8991 et seq.)
The prosecution in its indictment has selected these in which Czech nationals who wanted to escape across the Swiss frontier had been sentenced to death because of treason.
Klemm, however, cannot be connected with any of these sentences. All documents, submitted by the prosecution, referred to cases before 1944.
For the defense of my client it is therefore needless to point out that sentences passed against Czech nationals because of high treason and treason cannot possibly constitute crimes against the laws of warfare or against humanity. It may be said here, however, in addition to what Dr. Kubuschok said yesterday I would like to add-- that no State and no occupational power will tolerate revolutionary plans of persons within its actual sphere of power.
It has been proven (Klemm Exh. 10 and statement of witness Fritzsche, Engl. transcr. page 5221, German page 5125) that the German people had been given the impression at the creation of the so-called protectorate, that the legal relationship between the two nations were based upon a two-sided agreement, and that therewith a duty of allegiance to the Reich had developed for every individual member of the so-called protectorate. What had really happened became known to the public only before the IMT, it was therefore legally quite possible for a German lawyer to accept the conception of high treason. If that would not have been the case, such an act, by the way, would have been regarded as an offense against the occupational power, and therefore shown the same results. It has not been proven that Klemm, before the disclosures of the trial before the IMT, had known anything about the fact that the occupation of the remaining part of Czechoslovakia had been an agressive action in violation of International Law. It has therefore not been proven subjectively either, that my client by any chance approved of a sentence which, in accordance with the basic principles of International Law, which have only now been established, could at that time have been regarded as illegal.
The President: I wonder if Dr. Schilf would care to answer a question. From you argument, I am inclined to inquire if you agree that a duty of loyalty must exist before a person can be charged with high treason.
'
DR. SCHILF: Your Honor, the concept of allegiance was mentioned by me here because the Prosecution particularly emphasized -
THE PRESIDENT: If Counsel does not care to answer, he is at liberty to refrain. My only question is not why you discussed it, but whether you recognized that high treason, when charged against a person, can be proven only if there was a duty of loyalty on the part of that person. Do you care to answer my question?
DR. SCHILF: No; I am not of this opinion.
THE PRESIDENT: You may proceed.
DR. SCHILF: Interpolation Number 4: The Prosecution again wishes to interpret from Exhibit 252 in its final plea that Klemm had approved death sentences passed by the People's Court on account of high treason by rejecting pleas for clemency. In Note 120, which was not read the day before yesterday, the Prosecution states that on the 17 of January, 1945, he had decreed that executions be carried out in five instances. Klemm denies altogether that the death sentences were reported on 17 January, 1945, - Page 7 of Exhibit 252 - to him. On that day reports were only submitted to the minister to the extent as they referred to death sentences. Page 7 of Exhibit 252 has been inserted by error only into this exhibit as a death sentence list dated 17 January, 1945 , that is, into the report list for individual criminal matters of 17 January, 1944.
On 17 January, 1944, that is one year before, it is a fact that Klemm as State Secretary, had reported to him individual, not yet concluded criminal proceedings. Klemm referred to this fact as a witness but the confusion does not seen to have been cleared on the part of the Prosecution as yet.
On the 17 January, 1945, no reports were submitted to Klemm, which is proved furthermore from the fact that doubtful cases were also involved in connection with these death sentences. Such doubtful cases, according to the uniform statement of all witnesses, were only submitted to the minister.
Moreover, it cannot be recognized from this what justifies the Prosecution to draw the conclusion that the people involved were five foreigners. The Prosecution draws its assumption here again only from non-German names as it considers them. This is no proof. The same applies for the reports mentioned in Note 120, dated 17 January, 1944, Page 154.
On 17 January, 1944, reports were made to Klemm but only in individual not yet concluded criminal proceedings. On this day there were also reports made to Minister Thierack and only these reports involved death sentences, among these again doubtful cases. The assumption that foreigners had been included among these can likewise be based here on the mere fact that the names do not sound German. The fact that on the report list of 2 August, 1944, Page 71, Exhibit 252, does not specifically state to whom the reports were made, is being used by the Prosecution for the completely unjustified assertion that those reports were made to Klemm, but this is positively contradicted by the fact that doubtful cases were included.
The comparison in Note 120 is likewise erroneous. Klemm did not admit that he had decided on the report days of 21 June, 31 May, 1944, and 27 January, 1945 including a total of 18 foreigners. Only the eight NN cases involved foreigners. It is incomprehensible whereby the Prosecution sees fit to draw the conclusion which it indicates under the column foreigners. Probably it is again only referring to the names.
It is a fact, therefore, that the Prosecution has not submitted one single document that Klemm had made decision in high treason cases against foreigners.
Only the case Jankowicz (Exh. 224) can be considered in this connection. A Yugoslav, working voluntarily in Germany, was concerned in this case. He was a major criminal and was sentenced legally. The execution, however, could not be carried out because he escaped (see statement Klemm, Trans. Engl. page 4889, German page 4906 et seq and Klemm Exh. 41).
III. The next point, to be considered, is the question in how far my client participated in decisions referring to N.N. matters. Within my pleas for Klemm I will not discuss the question, whether the handling of these matters by the Legal Administration can be considered as a violation of International Law, or, whether type and form of individual trials could be characterized as crimes against humanity. The legal aspect does not matter here, for the simple reason that for factual reasons his participation in these matters has not been proven.
The N.N. matters were assigned to the Reich Ministry of Justice at a time when Klemm was still working in the Party Chancellery. The Party Chancellery has never been requested to participate in the discussions between the Reich Ministry of Justice, the High Command of the Army and the Police.
Since the summer of 1944, after the trials have again been taken away from the Ministry of Justice, no further proceedings were taken. Only for the short time from January 1944 until the summer of 1944 can a participation by my client by considered at all. The prosecution has introduced only two documents concerning N.N. matters. The first is the official travel permit of von Ammon to Paris and his travel report (exhibit 322). The other one refers to the transfer of the department concerned with N.N. matters of the Special Court Essen to Oppeln (Exh. 504). According to Klemm's statement (trans. Engl. p. 4979, German p. 4897) and in accordance with Exhibit 282, altogether 131 cases were submitted to the Ministry as clemency authority during the time of his activities as Under State Secretary, 8 of which he has decided himself and not 10 as specified by the Prosecution. That is all, as far as factual participation of Klemm in N.N. matters is concerned. Considering the extremely limited participation in these matters, my client's sworn statement, that he could not gather sufficient knowledge about the integral parts of the N.N. procedure, appears absolutely trustworthy. As far as he was concerned, these were only delicts against the occupational power. He knew that the proceedings were kept a closely guarded secret (see in this connection the famous order of Hitler about the safeguarding of secrets, which was issued et the beginning of the war: Barnickel document No. 13); when he heard for the first time about them they had already become routine proceedings, so that as far as he was concerned he could only follow precedent and had no decisive influence, there was no necessity for him to know the matter at all (see statement Klemm, trans. Engl. p. 5022, German p. 4937, Engl. p. 5089 et seq., German p. 5001 and Engl. p. 5178 et seq., German p. 5086). The only thing that could possibly he said against his statements would be that he, as Under Secretary of State, has had the possibility to gain knowledge of these matters, as far as they were to be handled by the Ministry.
However, a certain limitation necessarily results from the large scale of his sphere of duties. It was impossible for Klemm to gain knowledge of everything that was to be handled by the Ministry. Since the beginning of the war Klemm had no longer the Ministry. The tremendous abundance of laws (legal decrees), issued during the war and caused by the war itself, could no longer be perceived in 1944. For my client, the N.N. matters were an entirely unfamiliar subject. It was a legally most difficult subject, which required special experts, familiar with the field of International Criminal Law. Everybody concerned with these matters was experienced It is therefore understandable that Klemm approached this submect with the utmost reluctance, and it is furthermore understandable considering the fact of the unaccustomed subject that Klemm did not want to leave himself open for criticism by the other experts, and did not try to use his influence in matters of which he could have no knowledge whatsoever.
As far as Klemm participated in clemency matters referring to death sentences, no special knowledge was required. Sufficient here was the knowledge of the legal situation, for instance about espionage, sabotage and similar established facts of a crime directed against the occupational power. In all cases it concerned criminal acts which called for a mandatory death sentence. I may recall the fact that the witness for the prosecution, Roewer, who was particularly critical in investigating these sentences could not find anything in these sentences which violated International Law (see statement Roewer, trans. Engl. p.
2654, German page 2639, Engl. p. 2656, German p. 2640, Engl. 2664, German p. 2648, Engl. p. 2868 et seq. German p. 2652). There is no reason, why Klemm, who could not know more than the witness Roewer, could have found something immoral in the factual findings of these sentences.
The travel permit for v. Ammon was a purely administrative matter. The journey had been recommended by von Ammon's superior and section chief. The travel report itself has been submitted to the Court; I do not doubt that the Court will reach the conclusion that Klemm could not gain knowledge of the N.N. matters from this report. For the transfer of the Special Court from Essen to Opeln - also a purely administrative matter - a knowledge of the basic facts was not necessary either. Decisive for the decision of the Minister were special circumstances, namely the continued air raids on Essen. The only reason concerned was the intention to guarantee safety for Court and prisoners. Only that part of the document was submitted to Klemm for signature.
Two other circumstances in addition prove that Klemm could have had no knowledge of the meaning of the NN cases. The Court has had frequent occasion to ascertain, that it was the rule in the Ministry of Justice for an official to sign his name to any document, of which he received even superficial knowledge. In none of the basic documents do we find Klemm's initials. The second circumstances is that neither of the defendants who were acquainted with the subject matter and who still worked on it when Klemm was Staatssekretaer, namely Mittgenberg and von Ammon, could in any way state that they made a basic report to Klemm about N.N. cases. Neither from files nor from reports, therefore, was it possible for Klemm to get any knowledge of these matters.
When in the fall of 1944 authorities originally in charge of the N.N. prisoners (military courts and police), requested their return, only the changed situation was reported to the Minister, according to the document presented by the prosecution. Klemm was not informed about it.
For Klemm these N.N. cases were nothing but a designation, and in their practical application he did not consider them different from other penal matters, and after all that has been brought to light from the evidence, he was far less concerned with these matters than for instance the prosecution witness Suchomel, who helped to prepare two important drafts in department III. Consequently, there is no reason to doubt that Klemm had no knowledge about the basic principles of these N.N. matters. At the most he could be reproached for having negligently omitted to devote the required attention to these matters. However, it is a recognized axioma of the criminal law, of, in fact, every civilized country, that even gross negligence is irrelevant in the case of acts which can only be committed intentionally.
In this connection it appears opportune to mention that the prosecution could at no point shake the credibility of Klemm's statements. In spite of a wealth of material submitted against Klemm, and in spite of its zealous endeavors, the prosecution has not been able to show that he had made a single false statement in any matter of importance. It is true, he made an error once while being interrogated in the witness box when he could, after more than ten years, no longer remember whether exhibit 456 was submitted to him in June 1937. That Klemm was in the witness box always anxious to tell nothing but the truth, is proved by the fact that his testimony about his work in the Netherlands was subsequently fully confirmed by the Dutch witnesses Tenkink and Hooykaas (Exh.
611, Klemm Exh. 80). The prosecution sent a copy of Klemm's testimony to these witnesses. Their objectivity and impartiality is beyond any doubt. These men who formerly worked closely together with Klemm, have confirmed every point of his testimony. Considering the fact that it comes from members of a former enemy nation, is surely is the best testimonial. Only two trivial deviations could be determined, which, however, were unequivocally cleared up in favor of Klemm (English transcript page 9389, German transcript page 8986 et seq.). It concerned an erroneous manner of expression, when Klemm was speaking with the above-mentioned men about the establishment of justice in the Netherlands. In this 15 0ct.
-M-BK-5-1-Sampson (Int. Steuer) connection Klemm wanted to say that it was a question of the institution and not the establishment or creation of jurisdiction (Gerichtsbarkeit), as the Dutch gentlemen understood it to mean.
The second point of doubt also was cleared up in favor of Klemn. His statement that during his period of office no death sentences were passed, has not been refuted. It is self-evident that Klemm could have meant only the department of civilian criminal justice of which he was in charge, and not the military courts. The documents of the prosecution subsequently submitted (Exh. 606 and 608) prove that death sentences could have been pronounced at that time only by the military courts. Additional documents submitted by the prosecution in rebuttal proceedings can only serve to prove that Klemm tried to reject or moderate the severe proposals of other administrative departments (Exh. 6l0). These rebuttal proceedings were particularly suitable to test Klemm's credibility, and this text he passed. I consider it important to establish that the witnesses Tenkink and Hooykaas had an opportunity before this Court, to examine Klemm's testimony, and that they were able to confirm that his statements were true.
The odium attached to Klemm for the sole reason that he worked for a considerable time at the Party Chancellery rests on nothing else but a judgment as to value. It has been shown on a number of occasions that at this work Klemm always asserted his ideas about a Constitutional State (Rechtsstaat), even against radical Party influences. It has been clearly established that it was unjust to saddle him with a cheap judgment as to value solely on account of his previous occupation (herkommen). The witnesses and affidavits brought and presented by the Prosecution show by the quoting of individual cases sufficient reason to induce the Court to decide that subjective judgments of individuals as to value - and also of the Prosecution authorities as they say Klemm -- were wrong and unjust.
My client refuses, therefore, also in these proceedings to associate 15 0ct.
-M-BK-5-2-Sampson (Int. Steuer) himself with the accusation of the co-defendant Joel.
He refuses now just as he did it formerly at the time of Joel's appointment to General Public Prosecutor to make a statement about this subject (testimony of Hartmann, English transcript, page 9040; German, page 866l and following). It is exclusively a matter of personal quarrels and rivalry between Klemm and Joel which dates back to 1935 through 1938. From the affidavit Best (Joel Exh. 43), submitted by Joel himself, it can be seen that Klemm did not act improperly. May I point out the fact that Klemm, according to the testimony of the witness Hartmann (English transcript page 9021; German, page 8640) was at first regarded with suspicion, primarily based upon the fact that he was considered as being party-bound, and as having come from the Party Chancellery; that Klemm's colleagues however soon realized that they had formed a false impression about his personality.
IV. From the documents presented by the Prosecution itself it may be seen that Klemm did not have the least to do with Department XV of the ministry. He therefore never took any part in the execution of the agreement between Thierack and Himmler to turn the socalled asocial justice prisoners over to the police. This department was founded on account of the foregoing agreement. It began to operate at the end of 1942, that is at a time when Klemm worked in the Party Chancellery. The Party Chancellery never had anything to do with these natters. No contradictory statement was made by the Prosecution. The transfers from judicial custody to the police were concluded in February 1944. The penal institutions in question at that time no longer held any prisoners who would have been subject to these provisions. Consequently, when Klemm became Staatssekretaer, he could not have been put in charge of any department concerned with such matters. This was also officially clarified at a meeting of department heads at the beginning of January 1944 (Exh. 45). It is further shown from the prisoner's ledger of the penitentiary Ebrach (Exh. 271) that the last prisoners were turned over to the police at the beginning of February 1944 pursuant to separate decrees issued a long time before.
There was absolutely nothing to decide any more for Department XV, and thus Klemm could not have participated in any decree whatever. Indeed, the expert of Department XV, the witness Hufferschwiller clearly confirmed in his affidavit (Klemm Exh. 63) never to have made a report about the agenda or the work of his department to Klemn. Moreover, the department had been moved and did not operate in Berlin. The department head Engert was in the habit of always making a direct report to Thierack upon arriving in Berlin. Klemm, therefore, surely could not have been informed by Engert about any incidents whatever. It may be mentioned that the documents concerning Department XV which the Prosecution has submitted, - especially the agreement between Thierack and Himmler (Exh. 38), - do not evidence Klemm's signature, and thus one cannot draw the conclusion that Klemm received knowledge of the incidents by perusing the files.
It is therefore clearly proved that Klemm cannot be charged with having in any way participated in the transfer of justice prisoners to the police.
The Prosecution apparently believed to tie up Klemm in this connection with the incidents in the penitentiary in Sonnenburg. According to what we now know, we have to proceed on the basis or the following information: The penitentiary Sonnenburg was evacuated during the night from 29 to 30 January 1945, because of military necessity.
With regard to the affidavit of Frau Leppin (Exh. 239) it is necessary to proceed from the fact that prior to the evacuation, seven to eight thousand prisoners were executed by a commando of the SS or the Gestapo without having been lawfully sentenced to death. The Prosecution declares in addition that Russian women and children also were involved. This is not proved from the statements of Frau Leppin.
To begin with, it must be determined who is to be held responsible for this murder and who gave the order for it. According to the eviden ce offered the following has been established without doubt:
The territory to which Sonnenburg was assigned was already declared operational territory in the middle of January 1945 and was placed under the command of Himmler in his capacity as Military Commander in Chief of the Weichsel-Army. As a result the civil authorities in this territory had no longer the authority to issue instructions and lacked executive power. This authority was transferred exclusively to Himmler and Stuertz, the Reich Defense Commissioner for Brandenburg who was directly subordinated to him. Evacuation of this territory could therefore be carried out only with the consent of Himmler. Himmler, in his capacity as Commander in Chief directed a special, order to all authorities and also to the Supreme Reich Authority in which he expressly declared himself against it (See testimony of the witness Lammers, page 5593 of the English and page 5459 and the following of the German transcript; Fritzsche, English transcript page 5221, German transcript page 5125 and the following pages; Klemm English transcript page 5039, German transcript page 4955 and the following pages. Consequently, the Reich Minister of Justice, as the civil Reich authority, could no longer decide whether the institution should be evacuated or not, before the approaching enemy. Evidently, it must originally have been Himmler's plan to utilize the inmates of the institution for the defense of it. Based on this change of orders the Reich Defense Commissioner became the master of the institution under Himmler's command. This is evident also from the legal provisions existing at that time concerning the authority of the Reich Defense Commissioner (See Klemm Exh. 5, 6, 7 and 8). That is the only thing which Klemm really knew.
This knowledge was based on a communication from Thierack, dated about the middle of January 1945, at a time when Thierack was said to have discussed the question of evacuating the institution for the first time with the military authorities and with the Reich Defense Commissioner (Affidavit Klemm, Engl.