This fact should not be overlooked. It is established and is contradictory to the allegations of the Prosecution. mony of nearly all of the defendants, the organization and formation of the Einsatzgruppen and their sub-formations, i.e. the Einsatzkommandos and Sonderkommandos, took place in Pretzsch and Dueben. night, a roll call was held during which the officers and men were assigned to the positions they were intended for in the Einsatzgruppen and Kommandos, On this occasion the defendant was assigned to Sonderkommando ub as an interpreter. In a speech Streckenbach only emphasized particularly the general duties of a soldier in the field with respect to fulfilment of duty and discipline. Any explanation about the aim and purpose of the commitment was not given. In Dueben, to which place the Sonderkommando 7b had been transferred, the organization of this Kommando was set up in detail by its commander, Major Rausch. The Sonderkommando 7b was divided into an SD squad and two executive squads. The defendant Klingelhoefer was assigned to the SD squad with the special order to organize it. This sub-division of Sonderkommando 7b was continued until the withdrawal of the defendant Klingelhoefer from this unit. The later commitment made it necessary to make a new arrangement, namely in that manner that the SD squad disappeared and in its place SD experts were assigned to each of the executive squads. In that regard I refer to the testimony of the defendant in the English transcript, pages 3896 to 3898. The employment of the defendant in the SD squad was done with regard to his activity with the SD in Kassel. The defendant received the knowledge of the aim of the commitment and the purpose of the Sonderkommandos shortly before the departure to the Russian territory, at a roll call hold by the commander of the Kommando for this purpose. Major Rausch particularly stressed that it was the task of the Kommando to cover the rear area of the combat troops and to compile all important material in intelligence reports which was to be done besides the usual SD reports.
In this connection he pointed to the ruthlessness of the fight against the Red Army which was to be foreseen, and, moreover, he disclosed the order of the Fuehrer. According to this, the Jews in Russia were to be considered as the strongest support of Bolshevism and to be shot. He stressed that this must result in a heavy charge for the members of the Kommando. It had also bee tried to have this order cancelled, however in vain. The order would also affect Communist functionaries and Gypsies. In this connection he expressed his opinion that his Kommando would have nothing to do with this order, since it had first of all the task of following the combat troops immediately, while special Einsatzkommandos in the rear area as stationary units would take charge of the carrying through of this order. interpreter and SD-Specialist and must therefore have been convinced that he would never be compelled to participate in the execution of this order. It was a matter of course that this order deeply impressed the defendant and his aversion against it, which he expressly emphasizes in his testimony, can well be understood. His activity during the whole subsequent period kept him away from these things. It is clear and is not denied by the defendant that he frequently heard of the executions in compliance with the Fuehrer Order but the drawing up of his special reports, which was of quite a different nature as compared with the usual SD reporting, prevented any personal participation of the defendant in these incidents, and this is estensibly expressed by the fact that the command of a Sonderkommando or an Einsatzkommando was never conferred upon him.
The fact that he was appointed commander of the Vorkommando Group Staff is not contradictory to this either; for a task was envisaged for this Kommando which was entirely within the framework of the former work of the defendant. For that reason the Vorkommando Group Staff is never mentioned in the documents in connection with the executions. which are to show his participation in the executions which were performed by Sonderkommando 7b, by the Vorkommando Moscow and by the Staff of Einsatzgruppe B.
By Prosecution's Exh. No. 61, Document No. NO-2844, it is to be proved that Klingelhoefer participated in the shooting of 886 persons which is attributed to Sonderkommando 7b in this Operational Situation Report dated 4 September 1941. 1941 until 10 or 11 July 1941, as is proved by his testimony on the stand and by Klingelhoefer Document No. 2. During this period, however, the Sonderkommando 7b was on the advance. During the approximately 3 weeks Klingelhoefer belonged to this Kommando, it travelled via Brest-Litovsk and Slonim to Minsk, a distance which is not at all insignificant. Of course, the advance of such a unit cannot be carried through without difficulties and therefore the statements of the defendant are absolutely worthy of belief, if he reports that during this period the Kommando did not perform executions just because of this advance movement. The Exh, No. 61 of the Prosecution, mentioned at the beginning, shows the state of 20 August 1941 as reporting date. Since the defendant no longer belonged to the Kommando after 10 July 1941 and since the Kommando was engaged in a greater advance movement before this date, the document proves by no means with regard to the defendant that even part of these reported executions took place before the date on which he left Sonderkommando 7b. Therefore, it proves by no means either that he participated in those executions in any form.
The fact that the executions took place is by no means sufficient for the presumption of the defendant's participation in then. The Prosecution ought to have shown from what it concludes a co-operation of the defendant Klingelhoefer. Furthermore, it ought to have advanced the facts and evidence for these facts which would have justified such a conclusion. Prosecution draws from this same Operational Situation Report No. 73, Prosecution's Exh. No. 61, namely Klingelhoefer's participation in the execution of 46 persons by the Vorkommando Moscow. Klingelhoefer document No. 2, Exh. No. 2, proves in an absolutely clear manner that within the Vorkommando Moscow the defendant dealt exclusively with extensive intelligence tasks which were connected with the securing of valuable documents. The same affidavit, more precisely Klingelhoefer Exh. No. 2, Stresses moreover that additional work was assigned to the defendant in Smolensk within the framework of the Vorkommando Moscow, which was in the line of his intelligence activity and entailed important and extensive work for him. Among other things the evaluation of the discovered archives of the Communist Party pertained to this. The further statement contained in this Exhibit No. 2 submitted by Counsel for the Defense, according to which Klingelhoefer neither performed nor participated in an executive activity within the Vorkommando Moscow, is extraordinarily vital in this connection.
The Document No. NO-3143, Prosecution's Exh. No. 64, which was furthermore presented by the Prosecution against Klingelhoefer, cannot be as evidence for a contrary assumption. The sphere of tasks of the defendant always remained the same during the whole period he belonged to the Vorkommando Moscow. The reason for his being transferred to this unit was, of all things, the established fact that he had a good knowledge of the country and its population and that he was at the same time perfectly Conversant with the Russian language. These conditions rendered the defendant particularly qualified for the forementioned work within the Vorkommando Moscow. A simple, reasonable deliberation alone results in the opinion that it would have been a waste of valuable abilities to entrust the defendant with tasks which would have left his knowledge unused.
of two more documents, namely Prosecution's Exh. No. 60 and Prosecution's Exh. No. 63. The first of these documents is an Operational Situation Report dated 9 October 1941 in which the execution of 114 Jews by the VKM is reported. The second document is an Operational Situation Report dated 26 October 1941 in which a total number of 2457 persons executed by the Group Staff and the VKM is stated.
Despite these documents the facts remain the same: The defendant was in no manner involved in the reported executions. I already set forth in detail his actual occupation. As regards Prosecution's Exh. No. 60 I should also like to point to the fact that Klingelhoefer no longer belonged to the Vorkommando Moscow since middle of September 1941, but had been transferred to the Staff of Einsatzgruppe B. Of course, this transfer did not change anything in his occupation. accomplished by the documents it submitted. The contents of the documents are by no means sufficient for an establishment of the personal guilt of the defendant. On the other hand Klingelhoefer's actual occupation is unquestionably ascertained. The affidavit submitted by Counsel for the Defense as Klingelhoefer Document No. 2, confirms that the defendant's testimony on the stand corresponds to the truth. Therefore, it cannot be a question of a guilt of the defendant as set forth by the Prosecution. According to the Prosecution the defendant Klingelhoefer also was in command of the Vorkommando Moscow. This contention does not correspond to the facts in any way. In his affidavit of 2 July 1947, Prosecution Exh. No. 124, the defendant says very plainly on page one that he had deputy-command of the unit. It has been determined beyond a doubt that this deputy command could only have occurred from the end of August, i.e. after the recall of Prof. Dr. Six, the first commander of VKM, until about the middle of September 1941.
As I have already shown, the defendant was transferred to the staff of Einsatzgruppe B in the middle of September 1941. Here I am again referring to the Klingelhoefer Doc. No. 2, Exh. No. 2, pages 7 and 8 of the English and German document books. The defendant explains this deputyship in his affidavit of 17 September 1947, Klingelhoefer Doc. No. 3, in detail. Accordingly, it is shown that while he was appointed deputy commander in the VKM by Nebe who had just taken over the VKM, that this deputy command should only go into effect when Nebe was absent from his permanent office in Smolensk. However, in the approximately three weeks under consideration here, this never happened. In the Klingelhoefer Document No. 2, Exhibit No. 2, it is shown, in this connection, that the defendant was only appointed liaison officer for the VKM and that only in the Case Nebe was absent from Smolensk. It is shown beyond doubt that Nebe had taken the administration of the Vorkommando Moscow in to his own hands and that all clerks and specialists of the VKM were forced to turn directly to Nebe. Klingelhoefer's appointment as liaison officer was pure formality. Therefore the defendant never commanded the Vorkommando Moscow in any way, and he cannot be hold responsible for executions which occurred during the time he was assigned to the Vorkommando Moscow. The advance command, Group Staff, which the defendant actually commanded, had nothing more to do with the Vorkommando Moscow, as it developed under Major Koerting, the successor to Nebe. It was his job to prepare the initial security measures for the imminent march into Moscow. Here I am again referring to the Klingelhoefer Document No. 2. Besides this pure planning and office activity, the Vorkommando Gruppenstab under the command of Klingelhoefer did nothing. Furthermore, the Kommando was dissolved in December 1941 when it was seen that an entry into Moscow could no longer be counted on. The defendant was on furlough in Germany, from 2 December 1941 until 25 December 1941 when the dissolution occurred. Therefore it would he entirely incorrect if, by mistaking the Vorkommando (Group Staff) which was in Gshatsk, for the Vorkommando Moscow, one were to charge the defendant Klingelhoefer with the executions carried out by the latter Vorkommando.
I am convinced that a thorough examination of the evidence will not lead to that mistaken conclusion. Now, during his assignment in Russia, the defendant Klingelhoefer was given some tasks wherein his qualifications as an interpreter must be looked upon as the reason for his assignment. In all of those cases it was necessary to have someone who knew the Russian language, who could clear up the situation on the spot through the necessary inquiries and dealings with the civilian population. However, in all those cases the defendant never executed the Fuehrer order in the course of carrying out his task. This can already be seen from the fact that only the commander of an Einsatzkommando or a Sonderkommando would have teen authorized to carry out the Fuehrer Order. Now I shall examine these assignments in greater detail, insofar as it seems necessary, in view of the arguments of the Prosecution. was ordered by Einsatzgruppen Chief Naumann to carry out a reconnaissance of the Partisans near Krassnji, village about 40 km west of Smolensk. The position, movements and activity of a Partisan group in the forest near Krassnji were to be recomnoitered, to provide the necessary information for the Wehrmacht to fight this group. The reconnaissance was carried out in close collaboration with the local Wehrmacht headquarters in Krassnji. This fact shows clearly that in this case Klingelhoefer's main task was as an interpreter who, by questioning and examining the local civilian population, was to provide the necessary basis for the real purpose of the operation. It doesn't have to be pointed out that reconnaissance is a strictly military function and that Klingelhoefer was only of use here as an interpreter. Here I refer to the statement of the defendant on the witness stand on page 3827 of the English transcript. The result of the reconnaissance near Krassnji was negative, because the Partisans had evidently been warned and had therefore disappeared.
Klingelhoefer was given Another task by Naumann, the Chief of Einsatzgruppe B, in about the middle of December, 1942. According to this he was to conduct an investigation on the state farm Wissokoje which was near Smolensk Just in passing I want to mention that the task described under 1) above had occurred over 1/2 year before and that in the meanwhile the defendant Klingelhoefer had been busy working on and evaluating the files, as I have already described in detail earlier. Russians who had been trained in Germany as intelligence and sabotage troops and who were to be dropped by plane behind the Russian lines, were quartered on this state farm in Wissokoje. There had been a delay of about three weeks due to bad weather, which prevented the execution of this operation. During this period a kind of mutiny had broken out among the Russians, who were about 15 or 16 in number. Klingelhoefer's investigation showed that 2 or 3 of these Russians had threatened to report their comrades, who had different ideas than they who were ready to carry out their assignment, to the nearest NKWD station after they landed behind the Russian front. Klingelhoefer made a thorough report of this investigation and sent it to Einsatzgruppe B. He does not know what, if any, measures were taken against the 2 or 3 Russians as a result of his investigation, because he went to Germany on leave after making his final report. staff of Einsatzgruppe B in this case was because he spoke Russian fluently. It was only through him that a reliable investigation could be made, which as desired under all circumstances. Finally, one cannot overlook the fact that he was assigned to service in Russia as an interpreterrin the first place.
The incidents mentioned under subsections 1) and 2) are not contained in any of the documents the Prosecution has presented. The defendant has mentioned them in pursuing his intention always to tell the whole truth. The credibility of his statements is therefore not to be doubted. The defendant Klingelhoefer was given two more assignments like the ones just mentioned, one of which is mentioned in the Operational Situation Reports, while the other is only found in Klingelhoefer's own affidavit.
This last circumstance again affirms that the defendant expresses his love for the truth in every situation.
Einsatzgruppe Nebe, according to which, Klingelhoefer had to procure winter clothing for the Einsatzgruppe, that is, fur coats and fur linings. The Prosecution submits as evidence in this exhibit No. 124, that is, the affidavit of Klingelhoefer dated 2 July 1947 which was drawn up by the Prosecution's interrogator Wartenberg. This whole affidavit was expressly refuted by the defendant through a second affidavit that was made out before the sane official and countersigned by him. The Defense has submitted this 2nd affidavit dated 17 September 1947 as Klingelhoefer Document No. 3, Exh. No. 3. The reasons for the withdrawal can be seen from this document. As the defendant declared in explanation of this in the witness box, the above-mentioned interrogator of the Prosecution expressly afforded him the right to correct possible inaccuracies in his affidavit dated 2 July 1947 later, in a special new affidavit. That was the reason, too, why Klingelhoefer's affidavit dated 17 September 1947 was countersigned and accepted by the Interrogator Wartenberg. I refer here to page 3855 of the English record. An answer to the question as to why the defendant when he was first interrogated by Wartenberg was in a confused state of nerves can easily be found. If one considers how it must affect a person who throughout his life has done no wrong and is now startlingly confronted with the accusation of having cooperated in a criminal manner in the killing of a number of innocent people, it is clear that such a shock causes a profound reaction. This state of nerves of the defendant led, among other things, which the defendant has mentioned also on the witness stand and which are partly of a purely personal nature, to his attempted suicide, too. it is absolutely understandable if, in spite of the desire to speak the whole truth, he was not in a position to pay attention to the accuracy of the wording of a declaration submitted to him with the considered care that would otherwise characterize a healthy man in a normal condition.
The fault in this rests neither with the defendant nor the interrogator. If the interrogation had come after an improvement in the nervous condition of the defendant, then declarations would have been made by the latter readily which he would have had no occasion to withdraw and which he would today have had to leave unaltered for and against himself. His declaration in the first affidavit dated 2 July 1947 according to which he commanded the Vorkommando Group Staff until 2 Sept. 1942 may be cited merely to illustrate how little Klingelhoefer, in the case of the interrogation in question here, could actually survey the position during his stay in Russia. This quite obvious inaccuracy in a very essential point has been remedied at the instigation of the Prosecution. Exactly in the same way as this discrepancy arose, a series of further false assertions are contained in this declaration the objective inaccuracy of which was not noticed by the defendant when signing just because of his condition which gave rise to indifferences Because of the correction suggested by the Prosecution, the defendant Klingelhoefer has now, however, undertaken, on his own, a complete correction in the form of a new affidavit, while expressly withdrawing the original affidavit, which merely for technical reasons was only put down in writing and signed by him in the presence of Herr Wartenberg 14 days later, namely on 17 Sept. 1947. ally from the fact that Prosecution Exhibit No. 124, that is, the affidavit of Klingelhoefer dated 2 July 1947, must be eliminated in the evaluation of evidence by the honorable Tribunal. witness stand and in his 2nd only valid affidavit of happenings in Mstislawl and Tatarsk were to be discussed in detail once more. I should like to draw particular attention to one point only, however.
The shooting of the Jews in Mstislawl and Tatarsk took place on the sole responsibility of Hauptsturmfuehrer Noack. Noack received an express order to do it directly from the Chief of Einsatzgruppe B at that time, Nebe. Noack was the only commander to be considered for this since his special section was responsible for dealing with Jewish matters. The witness Vetter declared expressly in cross examination by the Prosecution that this very Noack was known even among the cirilian population as Commissioner for Jews. Page 5256 of the German, page 5165 of the English Record. This unequivocal statement affords sufficient actual proof for the fact that Hauptsturmfuehrer Noack must have been encrusted with the carrying out of the executions of the Jews, otherwise, he would not have received such a title among the people. In the same way, the accuracy of the defendant Klingelhoefer's statements with reference to the description of events in Mstislawl and Tatarsk can be concluded from this: logically, this is also a confirmation of the fact that his statements relative to this on the witness stand correspond to the truth like his statements in the Document Klingelhoefer No. 3, Exh. No. 3. Consequently, it is also in conformity with the facts that the sole task of the defendant in Mstislawl and Tatarsk was to look after the supply of furs as a result of appropriate negotiations with the Russian mayors of these places. This task is merely in keeping, too, with his capacity as interpreter which made him appear suitable for this. cludes Klingelhoefer's order to investigate a report concerning the escape and mutiny of the Jews in the Ghetto in Tatarsk. For this the Prosecution has offered Document No. NO-3160 Exh. No. 65 as evidence. It is the Operational Situation Report No. 124 dated 25 Oct. 1941 in which it is reported that in Tatarsk, because of noncompliance with orders of the German Security Police, all male Jews as well as three women were shot.
makes it possible to conclude that the defendant Klingelhoefer was mixed up in this. Right from the start he freely admitted this. Furthermore it is to be stated that in the Operational Situation Reports submitted to the Honorable Tribunal as evidence in the case of actual executions of Jews in the sense of the Fuehrer Order, explanations are never given as to why these Jews were shot. The reason for this was the existing Fuehrer order and no further commentary was required. In this report, Prosecution Exh. No. 65, contrary to this other method, a detailed reason is given for the shooting of the Jews in which the fact is specially stressed that the non-compliance with the orders of the German Security Police resulted in the shooting. From this very circumstance which without doubt is striking it can be assumed that in these incidents it cannot be a question of execution of the Hitler Order in the sense of the Indictment. Now, the defendant Klingelhoefer gave a detailed description of the events on the witness stand which he confirmed as accurate on account of an investigation thoroughly carried out in Tatarsk. According to this, the cause of his being sent there was not to be looked for in the fact that an action against Jews was supposed to have been started by the Chief of Einsatzgruppe B, the cause of his commission was simply a report of the mayor in Tatarsk which the latter had sent to Einsatzgruppe B by a special messenger. This report contained the confirmation of the mayor that all Jews and Jewesses of the Ghetto in Tatarsk head left it and had threatened to kill the mayor of Tatarsk along with his police. Therefore, the mayor implored help and support in the quickest way, since he was no longer master of the situation. in connection with his order to procure furs. Therefore he knew the place and its surroundings. He knew the mayor, too, and, apart from that, because of his knowledge of the Russian language, was in a position to ascertain most accurately by direct contact, with those concerned in how far the report sent by the Russian mayor of Tatarsk corresponded to the true state of affairs.
It was therefore quite the obvious thing to dispatch the defendant to Tatarsk with the order to confirm it accordingly. Had an action against Jews been planned, then the defendant would have been out of place here, because no confirmation of any guilt and therefore no kind of investigations would have been required. Nobody would have been required who had command of the Russian language. Therefore it was merely a question of ascertaining by thorough investigations whether the Jews had, in fact, left the Ghetto and threatened the mayor, that is, whether they had violated the prohibition which was expressly imposed when the Ghetto was established, to leave the Ghetto without special permission, although death was threatened in the event of this violation. The interrogations actually carried out not merely confirmed this state of affairs but reveal ever and beyond that that the Jews had sought contact with the partisans and established it. Support and strengthening of the partisans was likewise threatened with death by an Armed Forces Decree. Then he arrived in Tatarsk the defendant Klingelhoefer was only able to seize 30 more male Jews, while a considerably larger number of women and children could still be arrested. According to the interrogations these 30 Jews represented only a relatively small proportion of male Jews previously to be found in the Ghetto, By far the greater proportion of male Jews had fled and, according to the statements of the mayor, of the remaining Jews, and of the Jewish women who were interrogated, had joined the partisans, who, as we know from experience, were hiding in the pathless woods which expended close, up to Tatarsk. It was extablished, in particular, that before the Jews escaped from the Ghetto, three Jewish women had already contacted the partisans, that these three women had returned to the Ghetto again and had goaded on the male Jews to escape from the Ghetto and to join the partisans. Therefore, it had been planned in advance that a small proportion of the male Jews was to remain in Tatarsk together with the women and children to support the partisans as spies and informers by means of informations about the German Forces.
This plan, as a result of the remaining behind of the previously mentioned 30 Jews, had thus been practically carried out. with the partisans had been established. The Jews who had joined the partisans had undoubtedly told them that a part of their men had volunteered for espionage services and, the willingness to support the partisans which had actually taken place, constituted a menace to security, to be regarded as absolutely serious, and therewith, a violation of the afore-mentioned Wehrmacht decree. In connection with the escape from the Ghetto and in view of the threat to the mayor, the defendant Klingelhoefer had to consider it justified to carry out the capital punishment as threatened in the provisions of the security police. The allegation of the Prosecution that the Jews were concentrated in the Ghetto only for the reason that in this manner it was easier to shoot them, is not true. Against this, one must point to the fact that the Fuehrer Order, the wording of which had already been changed at that time, had already beer, carried out by Noack in Tatarsk, since at that time he had executed the old Jews and those unfit for work in accordance with the direct order by Nebe, mentioned before under paragraph 1). The defendant Klingelhoefer had no order to carry out the Fuehrer Order, neither did he have an order to shoot the Tatarsk Jews under all circumstances. It was his task to order an execution as punishment only then if it was to be established that the Jews had actually acted in violation of the security police regulations. Consequently, the defendant ordered those Jews to be executed whom, on the basis of his thorough interrogation, he had to regard as offenders of the security police regulations.
He arranged that the rest of them, and those were the women and children, be returned to the Ghetto as not guilty. Three Jewesses, however, had also to be found guilty as the instigators of these offenses. One cannot accuse the defendant of the fact that he has failed to mention the shooting of these three Jewesses in his affidavit. When questioned as a witness in his own defense he himself declares to this effect that he forgot them. One ought to believe him without hesitation in regard to this facto There would be no reason for the defendant to admit frankly the execution of 30 Jews and consciously conceal the shooting of three women. In both eases the defendant had to regard the executions as necessary and also justified on the basis of the existing regulations. He therefore had no reason for withholding the facts about the last mentioned execution. Neither could one imagine the reason that precisely three women only were subjected to execution, while a considerable number of Jewish women and children were returned unharmed to the Ghetto, if there had not been special charges against these three Jewesses which justified their shooting. As I have already mentioned before, the wording of the pertinent Operational Situation Report is not in contradiction to this either. On the contrary, it corroborates in a brief form the most important statements made by Kingelhaefer For the charges of violating the regulations of the security police or, as it is expressed in the report, "not complying with the orders of the German Security Police", could be interpreted in no other way but non-compliance with the order to leave the Ghetto only with permission and, to refrain from any contact with the partisans. If the rest of the details were omitted in the report it is not the defendants fault. It has not been ascertained as to how the Operational Situation Report No. 124, Prosecution Exhibit No. 165 came about in regard to the. point here in question. It may have been made on the basis of a report by Nebe and abbreviated accordingly, the reason for the shooting of the Jews nevertheless having still been preserved.
It may be left in the balance to determine what actually happened. Only of importance is the fact that the contents of the report are in no way contradictory to the defendant's statement made as a witness in his own defense. A contrary conception would only constitute a literal and forced interpretation of the report and would by no means do justice to the real circumstances about which only the defendant has given, and was able to give, the true explanations. the defendant Klingelhoefer has never been ordered to execute the Fuehrer Order, neither previously nor later on, according to which he rather was constantly occupied with the preparation and utilization of documents, by making use of his knowledge of languages, and in view of his clearly proven zeal for the truth, Prosecution Document NO-3160, Exh.
65 can by no means be used as evidence against him or against his statements. in this case too, the defendant has not contributed to the execution of the Fuehrer order but has acted by applying the regulations which were in force at that time. That he also was personally convinced of the lawfulness of his actions must be believed without hesitation. Control Council law No. 10. In my closing speech on behalf of the defendant Steimle I have already explained the nature and extent of the legal objections which may be raised against the application of this law. In this connection I have es pecially emphasized those parts of Control Council Law No. 10 which establish a now law that, in view of the generally recognized principles of law, cannot be applied in this ease either. I have especially pointed to a number of forms of participation which do not exist in the continental criminal law and especially not in the German criminal law. It is irrefutable that the defendant Klingelhoefer, during the period decisive in this connection, was only subject to German criminal law. The judgment of his conduct can and must only be passed on the basis of the circumstances prevailing at that time. This applies to the actual circumstances as much as to the legal system he was subject to. article II, paragraph 2c to 2e of the Control Council Law No. 10, could be applied in this case, the result would likewise be that, on the basis of' these provisions, the defendant had not become guilty either. No evidence could be produced against him that, by giving his consent, he had participated in the commission of any sort of crimes or that he was involved in any way in the preparation and execution of such crimes. His position within the Einsatzgruppe B and its affiliated organizations was always asubordinate one.
His position was not even outwardly connected with the crimes which the men in the dock have been charged with by the Prosecution In the same way he cannot be regarded, in the sense of Article II, paragraph 2e, as a member of a group or organization which were involved in the commission of the aforementioned crimes, With reference to this point I particularly like to refer to the statements which I made in this connection in my final plea on behalf of the defendant Steimle. The legal and factual conditions, cited there, which could made the defendant a member in this sense are in no way present in the case of Klingelhoefer. On the basis of an order from his superior office he had to perform his assigned duty as an interpreter and specialist on reporting, the nature of which has been described in detail, and it did not matter in this respect whether he was willing to do this or not. The defense has produced evidence for the fact that even the missions ho was to carry out and which in a few cases took him outside of his office, were absolutely within the scope of his assigned duty as an interpreter. During the period of his service in Russia it could hive never occurred to the defendant through his activity that his work constituted a necessary chain in the realization of crimes or the promotion of such crimes. In consideration of his general attitude he would have never included this result into his intentions if at all he had thought of such a result. unless evidence has been produced to the contrary. This proof must preclude any reasonable doubt. The evidence produced by the Prosecution does not meet this demand. The personality of the defendant Klingelhoefer and the facts which can be gathered from his development are clear proof of his decent and honest character. On this basis he hrs performed his assigned duty and, owing to his personality, he was not put into the position by his superior to argue about orders the execution of which he would have regarded as incompatible with his conscience. I am convinced that the Tribunal, in judging the case of Klingelhoefer, will arrive at the conclusion that the defendant is not to be found in any way of crimes against humanity end war crimes.
either as a perpetrator or participant.
According to Count 3 of the Indictment. the defendant Klingelhoefer is furthermore accused of his activity in the SD and in Section VI of the Reich Main Security Office. It is beyond doubt that he was a member of the general SS, a member of the SS-Special formations and the SD since 1934 and furthermore belonged to Section VI of the Reich Main Security Office. In respect to this point I again. refer to my explanation in the final plea on behalf of the defendant Steimle. During his activity in the aforementioned formations and in Section VI the defendand had never even the slightest possibility to presume that these organizations were used for criminal purposes. The Einsatzgruppen and their branch organizations could not convey to him such an opinion either because in front areas they were under the control of the army commanders. which was also expressly acknowledged by the International Military Tribunal, and, because as units of a special character, they could not make him think that their activity would some time in the future be imputed solely to the SD. Having once been a monitor of the SD. the defendant was no longer in a position, especially in times of war, to decide by himself about his future assignment, since he was subject to the orders of his superiors. It must be left to the judgment of the Tribunal to what extent a personal guilt can be ascribed to the defendant Klingelhoefer with reference to Count 3 of the Indictment. By judging the fateful events of that time this guilt cannot be a grave one by any means.
Mr. President. to remind the Tribunal once more of the words I have spoken at the beginning, and to express the request not to forget the broad scope within which the events took place which were here presented to the Tribunal by the Prosecution.