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.
Transcript, page 5039, German Transcript page 4955). Thierack in his capacity as Reich Minister of Justice was therefore deprived of his authority over the institution. Himmler and the Reich Defense Commissioner stepped into his place instead. Hanssen, the General Public Prosecutor with the Kammergericht, who was in charge of the institution as well as the director of the institution himself were legally subordinated as regional authorities to the Reich Defense Commissioner (Compare Klemm Exhibits 6, 7 and 8).
According to the testimony of the witness Herget (English Transcript page 9337 and the following, German Transcript page 8945) his office in Frankfurt a.d. Oder received the order for the execution from the Reich Security Main Office in Berlin. It was only this office which was in a position to give instructions to the Gestapo Office in Frankfurt a.d. Oder. The order itself could have reached the Reich Defense Commissioner. What part Hanssen may have had in this matter is not quite clear. The witness Herget only knows that allegedly there was talk about a General Public Prosecutor without his name being mentioned. Herget only assumes that it was Hanssen, although there were two General Public Prosecutors in Berlin. He also stated clearly that in his opinion - and as a member of the Gestapo Office Frankfurt he was particularly legitimized to do so - a General Public Prosecutor was not in a position to give any orders whatsoever to the Reich Security Main Office (Engl. Transcript page 9342, German Transcript page 8950). The statement, which was made by the Prosecution yesterday, according to which the command to the Gestapo in Frankfurt a.d. Oder had originated not with Himmler but with Hansen is out of the question. The witness Herget should know that better. Chief of the Reich Security Main Office was also Himmler. Himmler at that time was not only chief of the German police, but apart from other functions he was Chief Military Commander in the operational areas of the so-called Weichsel Army.
The Prosecution wishes to prove that the Reich Defense Commissioner had had no authority during the last days of the war to give commands. The Prosecution wishes further to prove that Stuertz too, as Reich Defense Commissioner of Brandenburg had not been able to give the directive in question to Hansen from the organization of the agency participating as it existed at that time. The Prosecution believes to be able to refer to Exhibits of Klemm. presented by myself, namely Nos. 6 and 8. It desires to gather from that that the Reich Defense Commissioner had issued no directives; it had not been authorized to issue any directives to the Supreme Reich agencies including the Reich Ministry of Justice. Furthermore, the Prosecution has failed to completely read the submitted exhibits 6 and 7 and to a certain extent 8m namely, to read them thoroughly. Otherwise, there is no doubt that the Prosecution would have found the provisions of Paragraph 4 in Klemm Exhibit No. 6 and also the paragraph bearing Roman five in Klemm Exhibit 7. It says there explicitly. I quote: "That in the operational areas an arrangement made for the executing authority was not touched thereby". Therefore, in both exhibits it says literally, both in references to the Reich Defense Commissioner as well as the appointment of commissioners as deputies of the Reich Defense Commissioners; Klemm Exhibit 8 also yielded with certain technical details and does not touch any arrangement made for the operational area. The submitted evidence clearly proves that the area to which Sonnenburg belonged had becone operational areas in the middle of January, 1945. Thereby all executive authority and commands were transferred to Himmler as the military commander in chief. The Reich Defense Commissioner was solely dependent upon his orders and directives. Based upon the decree on appointment of the Reich Defense Commissioner, which is Klemm Exhibits 6 and 7, he had the right to issue directives to all civilian agencies of his area. It is a fact, therefore, that the channels from the Reich Ministry of Justice, as supreme Reich agency was interrupted by declaring the area to be an operational area and was no longer subject to the Reich Minister of Justice, but exclusively to the Reich Defense Commissioner.
This is also proved by the statements of Eggensberger who spoke of a decree of the Reich Defense Commissioner Stuertz to Hanssen. It would have to be clarified how it was possible that Hanssen even mentions the name in the telephone conversation. This legal situation also conforms with the information Thierack gave to Klemm, namely, that Himmler in his capacity as military commander had placed the institution Sonnenburg under his jurisdiction and that he, Klemm himself, as Minister, had no longer anything to decide about Sonnenburg. Additional support to the correctness of Thierack's information to Klemm is given in the conference which Thierack held with his department chiefs on 31 January 1945 (Exh. 45) and in which he expressly stated that evacuations within the theater of operation are prohibited by military authority and that thus his jurisdiction had ceased to exist. Finally, this corresponds with the statement which Thierack allegedly made to Hecker when the latter called him, namely that Sonnenburg should defend itself. That was in conformity with what Thierack had made known to Klemm in the middle of January 1945.
When, on the other hand, the witness Hecker in his affidavit (Exh. 427) has stated that the Gestapo measures in Sonnenburg were based on an agreement between Stuertz, Hanssen and Klemm, according to a telephone note he made when he talked over long distance with Hanssen, then this statement is incorrect and irrelevant. Aside from the fact that Hecker could have no direct reliable information on the exact tenor of the conversation by phone since he himself was not a partner of this conversation, Hecker, when being crossexamined, was compelled to modify his statement to the effect that Effensberger's note supposedly read: "Klemm was informed in some manner". (English Transcript page 3070 and the following, German Transcript page 3032 and the following). The examination of the 15 0ct.
-M-BX-5-8-Sampson (Int. Steuer) witness Eggensberger, who had personally talked to Hanssen and who had made that note has already clearly shown that things were not as Hecker had claimed he had kept them in his memory.
Eggensberger has rather expressly confirmed (Engl. Transcript page 3084, German transcript page 3047) that Hanssen had talked to him about a decree of the Reich Defense Commissioner and this reference would, of course, correspond to the legal situation as already described by me and the development of the military situation.
It only remains to be clarified how it happened, that Hanssen in his long distance call with Eggensberger mentioned the name of Klemm at all. No direct proof has been offered that Klemm was actually informed or must have been informed of the events. Klemm has affirmed under oath that he has heard nothing of this matter. No witness can testify that Klemm had mentioned to him any knowledge of this matter. Neither is there a document in existence by which it could be proved that Klemm was informed. The only remaining circumstantial evidence is the telephonic message taken by the witness Eggensberger that Klemm was somehow informed. Hecker's confused report about his numerous telephone conversations cannot be utilized. From Hooker's statements it can only be gathered that he must suffer from lapses of his memory; nevertheless, that much can be gathered from it that Hanssen in talking to Hecker referred to a discussion which he had had with Klemm. This now is in conformity with Klemm's affidavit, according to which he had a discussion with Hanssen after the middle of January, however only on the subject that Sonnenburg has ceased to be under the jurisdiction of the Reich Minister of Justice, and was now placed under Himmler as military commander-in-chief and the Reich Defense Commissioner.
THE PRESIDENT: We will take our morning recess at this time until 11 o'clock.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. SCHILF: This conversation which I just mentioned did not at all touch upon the question of what should be done with the prisoners in Sonnenburg. It was strictly confined to the subject of the transfer of jurisdiction from Thierack to Himmler and that Himmler intended to include the institution into his operational defense plans. That Klemm could not have known anything, at that time that the Gestapo was supposed to cooperate in the evacuation of the institution is revealed by the fact that in one of Hecker's phone calls Thierack explained to the latter that the institution would not be evacuated, but would have to defend itself.
The mentioning of Klemm's name in this long distance call is there fore based only on the previous discussion between Klemm and Hanssen, the subject of which however, was only the transfer of jurisdiction from Thierack to Himmler. In this respect Klemm was of course informed. However, there is nothing to prove that Kleemm was informed of the order for execution by any office whatsoever.
It is now striking that Hecker, in his capacity as expert for the evacuation of penal institutions, apparently did not forward the telephon message which he received from Eggensperger. At least, he did not present it to Klemm, as he testified himself on the witness stand. If that had been the case, everything could have been clarified already at that time, since, due to the fact that the message contained Klemm's name at all, Klemm could have cleared up the matter with Hecker, with the other participants and also with Thierack. Neither has Hecker during his examination as a witness stated that he attempted to inform the Minister. Nor did he recall having discussed the further developments of the matter with anyone else except Eggensperger That can perhaps be explained by the fact that Hecker, at that time, also was of the opinion that the judicial authorities have ceased to have jurisdiction over the institution Sohnenburg and that the institution was under the jurisdiction of the Reich Defense Commissioner and the General Public Prosecutor, subordinated to him.
If Hanssen in his long distance conversation with Eggensperger only intended to inform the latter that Klemm was informed about the changes in command over Sonnenberg, then the mentioning of his name was justified. If, however, Hanssen's message to Eggensperger was meant to convoy that Klemm was informed of the intended executions, then it would have been a lie. From Eggensperger's testimony it does not become evident which of the two informations Hanssen intended to give to Enggensperger.
Eggensperger has also clearly stated the reasons for it. Inasmuch as Enggensperger could comprehend Hanssen's message in the latter sense he immediately received this message with the greatest suspicion. He immediately suspected that Hanssen pretended to him that Klemm has approved only in order to evade a debate over possible objections on the part of Eggensperger. To Eggensperger it was also clear that not Klemm in his capacity as State Secretary but only Thierack in his capacity as Minister should have been informed on this question. Eggensperger has further testified that, knowing Klemm's attitude, he could not think him capable of having discussed with Hanssen the intervention of the Gestapo, "English transcript page 3084 and the following pages). It is impossible to give an explanation as to which meaning Hanssen's message may have had to Eggensperger since neither Eggenspergor nor Hecker have talked to Klemm about the matter after this conversation.
Should it then not be clear what the meaning of Hanssen's message to Eggensperger was, that means about what Klemm was already informed? I shall proceed from the unfavorable alternative assuming that Klemm was informed that "prisoners should be turned over to the Gestapo". If we impute this meaning it remains to be explained how Hanssen could have made such a statement.
He received his instructions no longer from the minister but from the Reich Defence Commissioner. At the same time he attempted to be covered by the Ministry and thought that he could accomplish this best by simply telling Eggensperger that Klemm was informed. Thus he did not only cut off further questions but at the same time he reasoned that he had complied with his duty of reporting which was expected of him. Not only Eggensperger's own testimony (English transcript page 5321, German transcript page 5220) but also Hartmann's (English transcript page 9038, German transcript p. 8659) also Buchholtz's (English transcript page 3721 and the following pages, German transcript page 3683 and the following pages) as well as the testimony of Klemm, give a clear picture of Hanssen's character and person and how he must have conducted himself in this case. When differences occurred with his subordinate referents in the ministry, Hanssen disdained to discuss his affairs. In order to cut short objections of subordinate authorities, he was in the habit of referring to an approval of the minister or the under Secretary, already on hand. Since Eggensperger knew this, he was immediately suspicious when Hanssen mentioned the name of Klemm.
The witness which were mentioned just now unaminously call Hanssen an especially ambitious, cold and fanatical person, who did not want to have his plan crossed. Thus it was actually the best thing to disregard Eggensperger simply by referring to the knowledge of an official who was superior to Eggensperger.
Whether he approved of Stuertz's decision, whether he participated in any way in the mass-murder, or whether he believed to be unable to prevent anything, remains unclarified.
These deliberations too - provided that Hanssen's information to Eggensperger should apply to the second alternative - show that nothing can be taken for eliciting the truth from such an uncertain statement.
Therefore nothing remained of the assertion of the Prosecution, except things which the two witnesses Eggensperger and Hecker could know from hearsay only. In this connection, it is important to point out, that Hecker in his affidavit (Exh. 427) showed the things at first in a different light, but has been clearly refuted by the witness Eggensperger, who himself had had the talk with Hanssen. Nobody could give an indication whether the things of which Hanssen allegedly informed Eggensperger, actually corresponded to the truth. According to all the circumstances which became evident, it may have been possible that Hanssen intentionally expressed himself to Eggensperger in an obscure manner, so that only presumptions and vague conceptions of this complex of facts arose already at the beginning, that is during the conversation between Hanssen and Eggensperger.
According to the legal situation as well as with regard to the actual development of affairs, Klemm could objectively exert no influence whatsoever, because 2 weeks before the execution was carried out jurisdiction for issuing orders were changed in such a manner that the Ministry itself no longer had any authority to issue orders. Therefore it is unimportant to deliberate whether Hanssen wanted to cover himself completely by making this remark. According to the documents submitted by me, Hanssen was subordinated to the Reich Defense Commissioner. Thus he was covered sufficiently, if by any chance he wanted to exculpate himself from the murder in Sonnenburg.
As Klemm did not know anything at all about the affair (Statement Klemm English transcript page 5038, German 4954) he bears no responsibility whatsoever for this horrible act. I consider it my duty to establish that the attempt of the Prosecution to construe a joint knowledge or even a participation of Klemm with an inadequate circumstantial proof-namely the phone call between Hanssen and Eggensperger-was not only a complete failure, but that, under consideration of all cir cumstances, this affair could, on the contrary be clarified positively in favor of Klemm.
The Prosecution believed that it had additional facts for submitting its evidence in the Sonnenburg case. These were the directives of 17 January 1945 concerning the execution of death sentences which were signed by Klemm by order of the ministry (Exh. 530). The Prosecution believes to see in the regulation, which says that in case an execution cannot be carried out with the guillotine, it may be carried out by shooting by a detail of the Wehrmacht or the police, proof of the fact that these directives were actually applied here.
These directives have no connection at all with the Sonnenburg case. This is clearly evident from the statement of the directives had been drafted (English transcript.... German transcript page 6000) as well as from the testimony of the witness Eggensperger, who had practical knowledge about this matter (English transcript page 5310 and the following, German page 5210 and the following). The directives order, as is the case everywhere for the proper execution of all punishment imposed, in which manner, among others, a legal death sentence is to be executed, if a mitigation of the sentence has been refused in the clemency procedure. These regulations do not contain the slightest trace of a permission for police departments to shoot prisoners who were only sentenced to imprisonment. The directives were compiled by department IV for criminal jurisdiction that is by an entirely different department than the department V, which was competent for the Sonnenburg case. They do not contain any important changes with regard to the former legal position, they only took into consideration certain measures made necessary by the wartime conditions without one being able to see the slightest inhuman act in these regulations.
The additional document submitted by the Prosecution concerning the directives for the evacuation of penal institutions (Exh. 290), which could, per chance, be connected with the Sonnenburg case, also contains nothing which could incriminate Klemm.
If it is ordered in these directives that in case of the evacuation of the prison institutions prisoners may also be handed over to the police for execution, it is very doubtful whether these directives were issued at all by the Ministry of Justice. The usual heading "the Reich Minister of Justice" is missing on this document, there is no file number, no date and no signature. In order to prove a legality these prerequisites would have been required, as it proved by the circular decree which follows this document. In view of the significance and importance of this decree it has been signed by Thierack personally, and in its contents it clearly contradicts the mentioned sentences of the so-called directives. The two witnesses Eggensperger and Hecker, who were members of department V which was competent for this matter, stated under oath that they never saw these directives. Thus there is no other conclusion left but that this is a rejected draft of an official of department V or even of the department chief Engert himself. If this affair would at all have gone to the higher officials of department V than at the most Thierack himself would have been informed by Engert and directly so. Thus Klemm's statement under oath in which he states that he had no knowledge at all of these directives and the letter of 12 May 1945, cannot be doubted. He himself stated details, which support his statement (English transcript page 5036 aqq., German 4951 ssq.)
Neither can Klemm be reproached in any other respect, by saying that he violated any duties in connection with department V, which was subordinated to him on paper only it was not his duty to supervise the work of this department. Hecker, who worked for the longest time in department V stated that in practive, Klemm was not concerned with the work of this department (see statement Hecker, English transcript page 4832, German, page 4756). This corresponds with Klemm's statement (En glish transcript 5092, German page 4944). Insofar, as he concerned himself, out of definitely private initiative, with the two penal institutions (Bautzen and Rothenfeld) he exercised special consideration and charitableness in the issuing of orders (Statement Klemm, English trans cript page 5184, German page 5092, and statement of the witness Reichert Kl. Exh.