3. FURTHER DEVELOPMENTS PRINCIPALLY WHILE THIERACK WAS REICH MINISTER OF JUSTICE (AUGUST 1942–1945)

a. “Special Treatment.” Further relations with officials of the Nazi Party, the Gestapo, the SD, and the SS

FILE NOTE CONCERNING A CONFERENCE OF 18 SEPTEMBER 1942 AT HIMMLER’S FIELD HEADQUARTERS BETWEEN HIMMLER, REICH MINISTER OF JUSTICE THIERACK, AND DEFENDANT ROTHENBERGER

RK 13227 B 21 Sept 1942

Field Headquarters, 19 September 1942

Subject: Judicial reform

1. Remark—On 18 September 1942 following an invitation by the Reich Leader SS, Dr. Thierack, Reich Minister of Justice, and Dr. Rothenberger, State Secretary, met at the Reich Leader’s field command post. They had a discussion, lasting 5½ hours, with the Reich Leader, in which also participated on the side of the Reich Leader, SS Gruppenfuehrer Streckenbach (Security Police) and SS Obersturmbannfuehrer Bender (SS judge with the Reich Leader SS and Chief of the German Police). The results of the discussion, about which State Secretary Dr. Rothenberger expressed greatest satisfaction, are to be summarized in minutes.[270]

[Notation in ink] Afterward the Reich Minister of Justice and the Reich Leader SS had a private conversation.[271]

2. Obediently submitted to the Reich Minister.

[Initial] L [Lammers] September, 22

[Initial] F [Ficker]

3. For the files.

Justice 24

MEMORANDUM OF THE REICH MINISTER OF JUSTICE ON A CONFERENCE WITH HIMMLER, 18 SEPTEMBER 1942, CONCERNING “SPECIAL TREATMENT AT THE HANDS OF THE POLICE” WHERE “JUDICIAL SENTENCES ARE NOT SEVERE ENOUGH”, THE WORKING OF “ASOCIAL ELEMENTS” TO DEATH, AND OTHER MATTERS

Discussion with Reich Leader SS Himmler on 18 September 1942 at his field headquarters in the presence of Under Secretary Dr. Rothenberger, SS Major General Streckenbach, and SS Lieutenant Colonel Bender.

1. Correction [Handwritten insertion: “Lammers informed”] by special treatment at the hands of the police [durch polizeiliche Sonderbehandlung] in cases where judicial sentences are not severe enough. On the suggestion of Reichsleiter Bormann, the following agreement was reached between the Reich Leader SS and myself:

a. On principle, the Fuehrer’s time is no longer to be burdened with these matters.

b. The Reich Minister of Justice will decide whether and when special treatment [polizeiliche Sonderbehandlung] at the hands of the police is to be applied.

c. The Reich Leader SS will send the reports which he hitherto sent to Reichsleiter Bormann, to the Reich Minister of Justice.

d. If the views of the Reich Leader SS and those of the Reich Minister of Justice agree, the final decision on the case will rest with them.

e. If their views are not in agreement, Reichsleiter Bormann will be asked for his opinion, and he will possibly inform the Fuehrer.

f. In cases where the Fuehrer’s decision on a mild sentence is sought through other channels (such as by a letter from a Gauleiter) Reichsleiter Bormann will forward the report to the Reich Minister of Justice. The case will then be decided as described above by the Reich Leader SS and the Reich Minister of Justice.

2. Delivery of asocial elements [asozialer Elemente] while serving penal sentences to the Reich Leader SS to be worked to death [zur Vernichtung durch Arbeit]. Persons under security detention, Jews, gypsies, Russians, and Ukrainians; Poles with more than 3-year sentences; and Czechs and Germans with more than 8-year sentences, will be turned over without exception, according to the decision of the Reich Minister of Justice. First of all, the worst asocial elements among those just mentioned are to be handed over. I shall inform the Fuehrer of this through Reichsleiter Bormann.[272]

3. Administration of justice by the people—This is to be carried out step by step as soon as possible, first of all in the villages and the small towns of up to about 20,000 inhabitants. It is difficult to carry it out in large towns. I shall rouse the Party particularly to cooperate in this scheme by an article in the “Hoheitstraeger.” It is evident that jurisdiction must not be permitted to lie in the hands of the Party.

4. Decrees concerning the police and the administration of justice will in future be published after having been coordinated, for example, in cases where unmarried mothers attempting to procure abortion are not prosecuted.

5. The Reich Leader SS agrees that the cancellation of sentence, even for members of the police, will remain with the Reich Minister of Justice as laid down in article 8 of the law relating to the cancellation of sentence.

6. The Reich Leader SS has given full consent to the ruling I have planned on corporal punishment ordered by the Fuehrer.

7. I refer to the law concerning asocial elements and give notification of the claims of the administration of justice, e.g., in the classification of juveniles as asocial elements and their direction.

It likewise seems to me that the actual circumstances which serve to classify a person as asocial are not laid down in the law with sufficient clarity. The Reich Leader SS is awaiting our opinion and will desist from submission of the law until then.

[Handwritten] One thing is clear—the reduction of the age of discretion has been tentatively submitted to, and approved by the competent agencies.

8. The Reich Leader SS has agreed to a clause for the Juvenile Court Law, whereby the age of discretion can be reduced to 12 years and the age of limited discretion can be extended to over 18 years.

9. SS Lieutenant Colonel Bender, on the staff of the Reich Leader SS, is appointed by the Reich Leader SS as liaison officer for matters which apparently necessitate direct liaison with the Reich Leader SS. He can be contacted at any time by teleprinter at the field headquarters of the Reich Leader SS, and will also come to Berlin once every month to report to me. SS Captain Wanniger is appointed liaison officer for other matters; he is stationed at the Reich Security Main Office.

[Handwritten] Kuemmerlein[273]

10. The Reich Leader SS points out that in the administration of punishment many more special institutions should be set up, following the principle that incorrigible criminals should be confined separately, and that those capable of improvement should be separated according to the nature of their crimes (e.g., embezzlers, thieves, and those who committed acts of violence). This is recognized as being correct.

11. The Reich Leader SS demands that the penal register be kept by the police. Arguments against this are to be examined (cancellation, aggravation, and the use of an extract from the penal register). The question is to be further discussed with SS Major General Streckenbach.

12. The Reich Leader SS points out SS First Lieutenant, Judge at the Reich Supreme Court, Altstoetter, at present on active service as a major, as being reliable and also District Court President Stepp; he considers Attorney General Jung in Dresden unreliable.

13. Finally, the Reich Leader SS broaches the subject of the office of the public prosecutor and its transfer to the police. I rejected it flatly. There was no further discussion of this subject.

14. It is agreed that in consideration of the intended aims of the government for the clearing up of the eastern problems in future Jews, Poles, gypsies, Russians, and Ukrainians are no longer to be tried by the ordinary courts as far as punishable offenses are concerned, but are to be dealt with by the Reich Leader SS. This does not apply to civil lawsuits, nor to Poles whose names are registered for or entered in the lists of ethnic Germans.

[Initial] Th [Thierack]

LETTER FROM THIERACK TO THE PRESIDENT OF THE REICH SUPREME COURT, 29 SEPTEMBER 1943, PROPOSING SS GENERALS OHLENDORF AND CERFF AS GUEST SPEAKERS[274]

Berlin, 29 September 1943

The Reich Ministry of Justice

T 712, M I a

To: The President of the Supreme Court of the Reich, Dr. Bumke

1.

Leipzig C 1

Reichsgerichtsplatz 1

[Stamp] Out: 29 September 1943

[Handwritten initials illegible]

Dear Dr. Bumke,

I would appreciate it if, together with the Chief Public Prosecutor of the Reich, you would invite SS Brigadefuehrer Ohlendorf and SS Brigadefuehrer Cerff to speak before the members of the Supreme Court and before the public prosecution of the Reich. This plan has been suggested by the Reich Leader SS, and I welcome it. The two Brigadefuehrers can both be reached c/o the Reich Security Main Office in Berlin.

Heil Hitler!

Yours obediently

[Typed] Dr. Thierack

2. After dispatch to State Secretary for information.

[Initials illegible]

3. To be returned to ministerial office.

REPORT FROM THE GENERAL PUBLIC PROSECUTOR IN JENA TO THE REICH MINISTRY OF JUSTICE, 30 SEPTEMBER 1943, CONCERNING COOPERATION OF JUSTICE AUTHORITIES WITH THE SD AND INTEROFFICE MEMORANDUMS PERTAINING THERETO[275]

REICH MINISTRY OF JUSTICE

Business Office a-3

Subject: Cooperation of the justice authorities with the Security Service of the Reich Leader SS.

IV a 2745.43 g-sheet No. 1

[Stamp] Secret

Copy of an extract from the report regarding the situation by the general public prosecutor in Jena of 30 September 1943

[Handwritten] 4606/1-a-4, 1512/42

The reciprocity contained in the executive order of the Reich Ministry of Justice concerning the cooperation of the justice authorities with the SD (Security Service) of the Reich Leader SS [Himmler] of 3 August 1942—[published in] German Justice, page 521—is only very conditional. The [Ministry of] Justice works openly, and the Security Service secretly. So, as a general rule the [Ministry of] Justice is not at all informed of the work which is being carried out by the Security Service and is therefore also not in the position to request information. It is usually accidentally informed about such investigations. So it was in the case of Greiz, which was submitted to the Minister and during which an inspector of justice was asked about the attitude in the judicial circles regarding the judges’ letters. I furthermore remember a case of Sonneberg from which the conclusion could be drawn that the Security Service made investigations regarding the protection of war marriages through the courts.

Berlin, 6 October 1943

Mr. MD I,

Mr. MD IV

For information. The Minister requests a report in this matter

[Illegible handwritten notes]

[Handwritten notes]

Mr. [?] Malzan

Mr. [?] Kremer

For information.

Are you informed about the above-mentioned cases of Greiz and Sonneberg?

[Signature] Mielke 7 October

None of the cases are known to me.

[Initial] M 7 October

Nor to me!

[Initial] K 8 October

Mr. [illegible title] Kuemmerlein

Are the above-mentioned details known to you? I would be grateful if you could inform me about the whereabouts of the above-mentioned documents.

[Signed] Mielke 8 October

[Marginal note] The cases are not known to me.

8 October

[Signed] Max Lechner

To Oberregierungsrat Mielke:

The documents have been thoroughly searched for in the Office of the Ministry. None of cases mentioned are known.

[Signature] Beitz 25 October

[Marginal note] To Oberregierungsrat Mielke. Oberregierungsrat Bender is the coordinator of the district Jena Department I (higher level, civil service). Doctor S. P. N. Friedrich is the deputy coordinator. The cases mentioned are not known to me. (I am an assistant to the general officials.)

[Signature illegible]

26 October

To Mr. Reinecke:

I would appreciate information on the coordinators in Department I.

[Signature] Mielke

25 October

Registered

To Ministerialdirector Letz:

I would be grateful to you for information as to whether you are informed about the cases of Greiz and Sonneberg. The peculiar method of not answering special questions is generally known throughout the entire Reich. It is unbearable for people with character and it is an impossibility for decent people or members of the Party. In my opinion it would come to an end at once if one is quite candid and would tell them the whole truth about the P.K. I personally must persist in the demand for complete equality and the corresponding etiquette. I have just given orders to the Oberregierungsrat [illegible name] to raise objections against certain abuses in a suitable manner at the Reich Security Main Office.

[Signature] Vollmer 27 October

[Marginal note] to IV a 2745/43 g

[Handwritten notes]

To be submitted first to President Dr. Friedrich.

Are you acquainted with these cases (Greiz and Sonneberg)? Not known to me.

[Signed] Dr. Friedrich

28 October

[Marginal note] to IV a 2745/43 g.

Sealed!

To Ministerialdirector Dr. Vollmer:

The cases of Greiz and Sonneberg have not been known in Department I. Moreover, I know from documents, which the minister produces from time to time out of his private files, that the Security Service takes up special problems of the administration of justice with thoroughness and makes summarized situation reports about them. As far as I am informed, a member of the Security Service is attached to each judicial authority. This member is obliged to give information under the seal of secrecy. The procedure is secret and the person who gives the information is not named. In this way we get, so to say, anonymous reports. Reasons given for this procedure are of State political interest. As long as direct interests of the State security are concerned, nothing can be said against it, especially in wartime. Moreover, as far as for instance evaluation of personnel of less important nature, questions concerning the judiciary or general “reports on public opinion” are concerned, I do not regard the anonymity as harmless. The danger exists, that people will be trained to snoop around, that unjustified denunciations will occur and that an atmosphere of mistrust will be created. There can indeed be no question of cooperation between the [Ministry of] Justice and the Security Service curing such a procedure. On the other hand the minister may be interested to know how the [Ministry of] Justice is criticized outside the official channels of appeals. In any case the secret, one-sided Security Service reports cannot be a basis for the establishment of facts and certain conclusions. They may provide hints.

Berlin, 29 October 1943

[Signature] Letz

[Marginal note] to IVa 2745/43g

LETTER FROM LAMMERS TO THIERACK, 23 OCTOBER 1942, STATING THAT THE OPINION OF THE GAULEITER HAS TO ACCOMPANY CLEMENCY CASES SUBMITTED TO HITLER

The Reich Minister and Chief of the Reich Chancellery,

Rk. 779 B g

[Stamp]

Reich Ministry of Justice

25 October 1942

SECRET

To the Reich Minister of Justice, Dr. Thierack

[Handwritten] has been submitted

[Signed] Ebersberg

Subject: Consultation of Gauleiter in clemency cases

Dear Mr. Thierack!

The Fuehrer ordered that in future in all cases submitted to him for clemency, the expression of opinion by the Gauleiter[276] has to be obtained. Details should be learned from the attached copy of my letter to the Minister of State and Chief of the Presidential Chancellery of the Fuehrer and Reich Chancellor, whom I requested to contact you.

Heil Hitler!

Very truly yours,

[Signed] Dr. Lammers

[Handwritten] taken care of IVa 1729/42g-1728/42g

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[277]

DIRECT EXAMINATION

*******

Dr. Wandschneider (counsel for defendant Rothenberger): We are now coming to a group of problems which were set down in Exhibits 38 and 39.[278] The exhibits are concerned with a discussion between Himmler and Thierack, in the presence of Dr. Rothenberger, as is said at the beginning of the transcript of 18 September. Dr. Rothenberger, would you tell us, please, who was your main opponent outside the administration of justice?

Defendant Rothenberger: Himmler, as the Reich Leader SS. That he was my opponent I had known for many years. I gathered that on the one hand from the fact that at public demonstrations I had repeatedly in view against all measures which had been taken against the administration of justice at the instigation of Himmler.

In particular, I remind you of the measures described in the Schwarze Korps against the German judges. I remind you of his measures which amounted to a correction of sentences. It was natural that the view which I had expressed in public as to what those measures would lead to, that Himmler through the SD service would have been informed of that. For me it was a matter of course, that Himmler would have been informed of the contents of my memorandum to Hitler, and that was proved right during the discussion later on. About that discussion Himmler knew that I had warned Hitler of the development of the administration of justice and of the development of the Reich as a whole, a development towards becoming a pure power state.

In particular Himmler knew from the memorandum[279] that I had requested that the entire administration of penal justice was to lie exclusively in the hands of the judiciary. That that constituted a camouflaged attack on the administration of justice by the Gestapo was naturally obvious to Himmler. That view of mine, namely, that Himmler for that reason harbored great distrust toward me, was confirmed to me not in the course of the discussion, but it was confirmed to me by the results of that discussion; and it was confirmed without any doubt. I saw Himmler once in my life and for the following reason:

He had sent out an invitation. Thierack said to me that I was to go along with him because it was a first official visit. We had only just assumed office and this was supposed to be my first official call on Himmler. We had not heard before what points were to be discussed there. One could only rely on suppositions. My supposition was that the problems which for years had been an object of dispute between the administration of justice and the police would probably be mentioned in the course of this discussion. Among those problems there were, in particular, the following questions:

On the one hand, the question of the transfer of the prosecution to the police, which has been mentioned here a few times, but the significance of which, I believe requires some explanation. I mean, it is significant for the entire set of proceedings and trials in Germany. The German prosecution at this trial here has repeatedly been described as the most objective authority in the world. Naturally, that was an exaggerated expression. But contrary to the Anglo-American procedure, what is correct about that statement is that the public prosecutor, because he has to deal with all elements that speak in favor of the defendant as well, constitutes a very far-reaching protective element for the defendant as well.

This is therefore for the entire method of proceedings, the position of the judge and in particular also the position of the defense counsel—which for that reason, too, is an entirely different position than it is under Anglo-American procedure—of essential importance.

If Himmler would have gotten the prosecution into his hands, which he had wanted to do for years, that agency which hitherto had been objective would have been in Himmler’s hands. Himmler’s struggle against the administration of justice would have been carried into the courtroom. That explains my great misgivings against that demand of Himmler’s. For this reason, as far as I knew this problem would become acute, I considered it my duty, although formally it did not concern me, but because it was a basic question for the reputation of the judiciary as such, I tried with all means at my disposal to persuade Thierack before the discussions that on no account was he to give way on that point. I had all the more cause to do so because I had the feeling that Thierack wavered on that point. I did not know, I only heard that here, that actually on the occasion of the Elias case which has been mentioned here, in Czechoslovakia he in a certain way had already committed himself. I made particular use of this factor without Thierack—I told him that if the prosecution would no longer be under the administration of justice, you yourself, who directs the penal administration of justice, will lose the ground under your feet. What I said was, “you yourself will saw off the branch on which you are sitting.” That factor evidently did have some effect upon him; it evidently succeeded.

The second problem which would probably be broached by Himmler was the question of the community law concerning asocials, which has already been mentioned. I shall refer to that briefly later, because that problem was discussed during the conference.

There were two further points which I thought would be broached. They were old hobby horses of my own. I am referring to the question of the Schwarze Korps and that of the correction of sentences. Thierack himself said to me before the conference on the way there—we went there together—“Will you keep in the background at the conference, please, because, on the one hand, the problems will probably concern matters which do not affect you, that is to say, matters of the administration of penal justice; and furthermore, I do not want an argument to arise between us again, which is quite apparent to outsiders, such as occurred during our visit to Lammers a month ago.”

Q. What happened at the conference itself?

A. It is nearly 5 years ago now since that conference took place, but as it was very impressive I believe I can remember it fairly well. It was not a formal meeting, since only a very small circle of people attended. It was, in fact, an informal conversation, interrupted by a supper. Himmler was the main speaker. I noticed this manner of speaking was very much like that of Hitler’s.

Presiding Judge Brand: Wouldn’t it be possible for you to concentrate a little more on the actual material features of the conversation?

Defendant Rothenberger: Yes.

Q. We don’t care how he spoke, or about his manner.

A. Yes, Your Honor.

To begin with, he made general remarks about the war situation, of which he took a favorable view. I do not remember now the sequence of the individual points which are mentioned in the minutes, but I do believe that he then immediately went over to the subject of the transfer of prisoners, that is to say, the transfer from the administration of justice to the police. That was a problem which was entirely new to me. He said that through his organizations he had had the facts established that the prisoners under the administration of justice, on the one hand, were badly overcrowded, and furthermore that in some cases at those prisons, work was still being performed which was not essential to the war effort. He mentioned handicraft and pasting together of paper bags. He himself, on the other hand, had constructed large armament works. He was of the opinion that at a time when every German, be it the soldier at the front or the man or woman in the homeland, was working for the war efforts, the prisoners too, in one form or another, should make their contribution toward the war effort.

When he had explained that to us in great detail, it seemed to me that Thierack’s attitude on that point was not altogether clear. On the contrary, I had the impression that Thierack had understanding for that request which Himmler had put forward.

No details were discussed as to what type of prisoner Himmler wanted transferred, but it was said in a general way that only prisoners with long terms would be considered for such transfer, since prisoners with short terms would have to be discharged again at an early date.

I myself kept silent on that point to begin with, because for one thing I did not feel certain on that question, and secondly, because Thierack had especially asked me to hold back. However, in the course of our talk—I do not remember whether it was immediately or whether it was later on—the conversation turned to the subject of the general relations between the administration of justice and the police. That conversation dealt mainly with the old arguments concerning the Schwarze Korps and Himmler’s correction of sentences. Himmler was of the opinion that the administration of justice had failed in various instances, and for that reason he had been compelled to intervene. Since Thierack, on that point too, did not take up a clear attitude in favor of the administration of justice, I considered it my duty to interfere. Naturally, I was cautious in my manner, but I was clear as far as the matter itself was concerned. I had just been appointed by Hitler and had the belief that Hitler was backing up my plans. I said that the problem of the police and the administration of justice could not be considered just from the point of view of one single sentence which might have been correct or incorrect, but that one must regard that problem from the general point of view of the reputation of the judiciary. I said that the reputation of the State as such was dependent upon the reputation of the judiciary.

In speaking of these things I referred to my memorandum and my opinion that Hitler had approved my memorandum on those points, too. I said that from that point of view I, too, considered it incorrect for the administration of justice to transfer prisoners to the police. If the prisoners were not being put to sufficient use for the war effort, the administration of justice itself would have to see to it that sufficient use would be made of such prisoners.

Himmler listened to my remarks with comparative calm. It seemed to me that he had understanding for what I was saying.

He said that he had never heard of these problems from that angle, and he said that in future he would instruct the Schwarze Korps to refrain from attacking the administration of justice; he would also stop the police from intervening in the case of individual sentences.

These two subjects had thus been concluded. The question of the transfer of prisoners seemed to me to remain undecided. Besides that point a few other problems were discussed, for example, the question of the asocial law.

Q. I wonder, would you for my convenience tell me the technical name of the asocial law, either by date or in any other way? What law are you referring to as the asocial law?

A. May it please the Court, that is not a law in the sense of ever having become a law. It is merely a draft which dealt with the question as to whether the police were to be allowed to arrest asocial elements. Have I made myself clear, Your Honor?

Q. In saying “the asocial law,” you didn’t mean that there was any law at all?

A. No, no, I did not. No, it never became law. I will explain that in a moment. I was familiar with that problem from my time in Hamburg. Yesterday I explained, as is evident from Document NG-387, Prosecution Exhibit 400,[280] that I had put forward the proposal that if such a law were to be issued at all, a judicial authority would have to be set up in order to decide as to who, in fact, was an asocial element. That same question was brought to my attention immediately when I assumed office in Berlin. I believe it was in my first or second week there when a Ministerialdirigent Rietsch came to see me. He said to me—Mr. Under Secretary, you must help us. Minister Thierack is prepared to agree to that law, and that would be impossible, because that law would give to the police alone the right to determine who is an asocial element. Since a large number of the criminal elements are also asocial elements, such a regulation, that is to say if the police were to have the right to determine who was asocial, that would mean that the penal courts would be completely eliminated. Together with Rietsch, before the conference at Himmler’s, I had had a lengthy conversation with Thierack on the matter, because this problem again constituted a fundamental question of the administration of justice. Thierack did not give his approval, even when Himmler broached that question at the conference and asked Thierack to give his consent, Thierack remained firm. That is evident from item No. 7 of the document. As I heard later on, negotiations were held between the Referenten, and the law never became a law in effect, at least not during my period of office, and I do not believe that it became effective afterwards. The further point which was discussed was the problem which I think has been discussed in almost too much detail here, that of the justice of the peace. It was astonishing and surprising to me that Himmler had any interest at all in that problem. He was fairly well informed about the historical foundations both abroad and in Germany, and it was equally surprising to me that he concurred in my opinion—I talked about that subject, my opinion being that the office of the justice of the peace was not to lie in the hands of the Party. That is evident from item No. 3 of the document.

Various other questions were discussed at length, questions which were largely of a technical nature, partly anyhow. I do not remember the order in which these questions came up for discussion. I am merely mentioning the question of age in regard to responsibility before the law [Strafmuendigkeit]. I believe that Himmler mentioned a few cases where children of only 13 years of age had committed punishable acts and where he was of the opinion that one had to punish them, whereas under the previously existing legislation a child only becomes punishable at the age of 14. Questions concerning the penal register were then discussed, concerning ordinances to be issued jointly by the administration of justice and the police. I do not remember for certain whether punishment by flogging was discussed in my presence. I think it is possible. I am certain that while I was there the question of the transfer of the prosecution was not touched upon at all. This document contains a reference under 13 where Thierack says “I flatly rejected Himmler’s demand for the transfer of the prosecution to the police.”

Dr. Wandschneider: Dr. Rothenberger, may I interrupt you before we continue? When you spoke about the correction of sentences you said that the correction of sentences, according to Himmler’s remarks, was to be stopped. The document of 18 September 1942 itself shows that beyond that a number of details were laid down as to what procedure was to be adopted in correcting sentences, concerning the relation between Himmler and Thierack and with the corresponding participation of Bormann. Were such particulars discussed in your presence?

Defendant Rothenberger: No. Himmler merely emphasized that a unilateral interference such as has occurred hitherto would no longer be permitted by him.

Q. Would you continue, please?

A. The last point which is contained in the document was also certainly not discussed at all. I am referring to the question of the transfer of the penal administration of justice concerning Jews, Poles, gypsies, Russians, and Ukrainians.

Q. Dr. Rothenberger, you know the transcript of 18 September, those minutes where it says that Himmler and Thierack led the discussion and that you were present. How can you explain it that those points which, according to you, were not mentioned in your presence must have been kept secret from you or deliberately cannot have been discussed in your presence?

A. The file note which Thierack wrote personally I saw for the first time here.[281] Today it is altogether clear to me how that file note came about.

Added to the file note in NG-059[282] is a notation signed by Ficker, Reich Cabinet Counsellor.

That notation confirms that following the conference which I attended, the Reich Minister of Justice and Reich Leader SS, I quote, “had a private conversation.” When I think it over as to why such a talk between the two alone took place, today I realize fully that Himmler and Thierack quite deliberately excluded me and misled me, in particular, concerning the most delicate points.

What their motives were, I naturally can’t say but in accordance with all the previous and subsequent events, immediately after the conference, I am bound to assume that Himmler and Thierack did not exactly regard me as their ally in such plans, and that during the first conference which I attended, they quite deliberately created the impression that they were making certain concessions. As to whether they, themselves, were not certain of themselves, as to whether Hitler really had a certain amount of understanding for my plans I cannot tell of course; but as far as the early period is concerned, that is possible. And now Thierack, I do not know when, for it cannot be seen from the file note (654-PS, Pros. Ex. 39), which bears no date, summarized the results of both discussions; that is to say, the conference which I attended and the following conversation between Himmler and Thierack alone, in this file note, without differentiating between them. It seems that a part of this file note was added by him only at a later time. I gather so from the original document, according to which some of the document was added later on by a different typewriter. That part concerns the last item, point 14, the question of the transfer of the administration of penal justice over Jews and Poles.

Q. Dr. Rothenberger, may I put another question to you in this connection? If I understood you rightly, you wanted to tell us that Thierack and Himmler were uncertain toward you and did not quite know where they stood with you. To what do you attribute that feeling that they had, that they did not quite know where they stood with you?

A. Mainly I think that feeling was caused by my memorandum. I assumed that Himmler knew that memorandum and that Himmler was not certain whether Hitler was really supporting the ideas of that memorandum.

Q. Did the unusual way in which you came to Hitler play any part in that?

A. No doubt, for Himmler and Thierack both knew that I had been appointed by Hitler himself in an unusual manner.

Presiding Judge Brand: You have covered that.

Dr. Wandschneider: Thank you. May it please the Tribunal, may I continue with my examination?

Presiding Judge Brand: Yes.

Dr. Wandschneider: What was your first impression after the conference?

Defendant Rothenberger: My first impression after the conference was favorable. Immediately after the conference, I told Reich Cabinet Councilor Ficker so. That too can be seen from Document NG-059, Prosecution Exhibit 38. I believed that that favorable impression was due to the fact that in regard to the main problems of the administration of justice, Himmler had not prevailed with his view. He had not asked to have the prosecution transferred. Concerning the correction of sentences and that of the Schwarze Korps, he had given assurances, in the problem of the asocial law, too, he had withdrawn his demand, and the question of the transfer of prisoners had at any rate remained open.

After the conference, the next morning in fact, I left by myself. Thierack remained behind—I do not know for how long he stayed. I went to Hamburg via Berlin to join my family in Hamburg, and there, too, I talked to a friend in a very positive way about this very important meeting which had concerned the administration of justice. When I returned to Berlin, the great disappointment began. Already after a few days, there was among the files which lay on my desk, a paper. That, too, was a file note by Thierack. It was a much briefer file note than the one here. As I remember it now, it concerned a conference with Goebbels. That file note indicated, in what form I do not remember now, that Goebbels had voiced to Thierack the idea of the extermination through work. That file note, was not addressed to me. It must have come into my possession by mistake.

When I read it, I could hardly comprehend that idea to start with. I could not comprehend what was meant by it. Feeling upset, I went upstairs to see Thierack immediately and asked him what it was all about. Thierack said to me with a certain amount of arrogance and condescension, “Do not get excited. It is correct that I talked to Himmler alone afterwards, that was the first time I heard of it, and in the course of that talk, this question, too, was discussed by Himmler and myself. But I rejected that demand on the part of Himmler with determination. I did that for humane reasons alone, and Himmler too understood that at the time everybody in Germany was needed.”

During that talk, Thierack took a paper out of his desk, and on this paper—which I did not read myself, but I could see it—Thierack wrote in the margin so that I could see it, in his green pencil, “Settled” or “Rejected.” I believe it was settled, as I can see now. Evidently, he wanted to confirm to me his assertion that this idea of extermination by work had been dropped by writing down that remark. I had only been in office for 3 weeks at that time, and I was still so innocent that I did not realize that those men might really carry out such an idea, and that they were deluding me.

Q. Dr. Rothenberger, in connection with this group of questions, a number of documents have been submitted about which you will have to give us your views. I now want to enumerate the various documents and to ask you to give us your views.

*******

We are now going to deal with Exhibit 264,[283] document book 4-A, page 42, that is a letter from the Reich Ministry of Justice to the general prosecutors, dated 22 October 1942, it is signed by Crohne, and it was connected with the carrying out of the agreement of September 1942.

A. I never saw the letter either, which was natural, because it was a problem which concerned penal law and the administration of penalties. Such matters were not submitted to me, on principle.

Q. As Exhibit 268,[284] the prosecution submitted a document which was signed by Dr. Eichler, and is dated 1 April 1943; it concerns the transfer of Jews, Poles, etc., into concentration camp. Did you ever hear of such a letter?

A. No, I never saw that letter either.

Q. Finally, a gruesome letter from Thierack to Bormann, dated 13 October 1942, plays a part. That letter was read into the record and was not submitted as a separate document—if I remember correctly. The court knows it, did you ever see this letter from Thierack of 13 October 1942?[285]

A. No, I do not know that letter either.

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Q. And then at the end of 1943, how did your leaving the Reich Ministry of Justice come about?

A. Yesterday I briefly mentioned the fact that as early as in April of 1943, after Thierack had tried to transfer me to the Reich Supreme Court in January but had stated that the time was not yet ripe for that, at that time I offered him my resignation which he rejected. Furthermore, I had mentioned that at the same time that did not keep him from starting investigation proceedings against me the same time of that year 1943 without my knowledge for the allegedly illegal procurement of furniture. That Thierack was primarily interested in getting rid of me in a manner which would give the impression to the outside world that I was being dishonorably discharged is proved by what I shall say briefly about my finally leaving the office.

Yesterday I also mentioned the fact that Thierack, as early as September 1942, kept my book for about 3 months. The German Judge—

Presiding Judge Brand: You need not repeat what you said yesterday; we remember it. Go on to something new.

Defendant Rothenberger: Yes. After Thierack had finally turned over this manuscript to the Party Chancellery and after it had been examined there for about 6 months, about in August or September—I am not quite sure about that date any more—of 1943 an SD report was received in the Ministry. Thierack put that SD report to me, and he told me it could be seen from that SD report that a plagiarism was contained in that book. That book contained a short historical review of the position of the judge in the old Germanic and Franconian era, and several sentences concerning that era were allegedly taken from a book by a Professor Fehr. Professor Fehr, Thierack told me, was an emigree, who lived in Switzerland, and a democrat; and there was concern that one day the London broadcasting station might broadcast the information that the German reform of the administration of justice really emanated from an emigree who was a democrat and lived in Switzerland. He said that was extremely dangerous from the point of view of foreign policy, and that I had to clear it up.

I did not know the name “Fehr” at that time at all. As can be seen from the preface, a considerable number of my assistants in Hamburg had participated in the work on this book, and one of these assistants dealt with the historical part of the book. One year before, when no mention was made about the possibility of publishing that book, he had compiled that historical data for me, which I needed for a lecture that I was supposed to give in the Reich Ministry of Justice. The other day I stated that in August of 1941 I gave a lecture in the Reich Ministry of Justice about the segregation of the profession of judges from the usual civil servant class. That historical compilation was made for that purpose.

I had the matter clarified by that assistant, Dr. Brueckmann, and he said yes, that was correct, he had used several sentences from a book by Professor Fehr compiling the data, without having any opportunity at that time to know that it would lead to publication.

Thereupon, I told Thierack what the causes for that oversight had been. At no time did anybody, not even Thierack, make the assertion that there was any guilt on anyone’s part. But I told him the man who could be interested to see that some sentences of a general historic content such as could be found in any book, that such sentences would be also contained in my book would only be Professor Fehr. Therefore, I wrote a letter to Professor Fehr, explained it to him, and asked him if that should be necessary for an interview; and before that conference took place—it was intended to take place in January 1944—Thierack succeeded in having me dismissed, and that in the following manner: I was just on a duty trip at the beginning of December 1943. During that time he went to Lammers and reported to Lammers that an application had been made by professors of the city of Hamburg who, he said, had complained that I was still in office. That in other words, would have been colleagues of mine, because I myself was a professor at Hamburg at one time. He added that from the point of view of foreign policy one could no longer maintain the responsibility of keeping me in office, and therefore, he asked that Lammers should suggest my dismissal to Hitler. I was informed about that at the end of December 1943, that is to say, before that conference with Fehr was to take place. At the end of 1943 I was suddenly called on the telephone—I was at that time with my family, it was during Christmas—[and told] that I had to come to Berlin immediately and take Thierack’s place temporarily because he wanted to join his wife. Thierack called me into his office and told me, “Hitler has directed that you be dismissed.” Upon my question, “Why,” he answered that the matter with Fehr had gone so far on account of the application made by the professors from Hamburg that it was no longer bearable to keep me. I told him that he himself didn’t believe that, and I wanted to leave the room. Thereupon suddenly he became very friendly and soft and told me, why, of course the matter of that book was just the external pretense, but first of all, in the course of this year and a quarter, I had never succeeded in establishing good relations with the Party Chancellery and the SS. Moreover he said I was accused of having taken part in the funeral of Guertner, which I didn’t understand at all, how anybody could be so stupid to charge one with having attended the funeral of an extremely decent former Reich Minister of Justice. I replied if these are the real reasons, then I was proud of it. Before I left him he again lied to me by saying, yes, he would have liked very much to nominate me for the position of president of the Reich Supreme Court, but Lammers had raised opposition against that. Then a few days later I saw Lammers in order to inquire about the background of the story. Lammers told me just the opposite. It was he, he said, who tried to offer some office of some kind to me, but Thierack had been the person who rejected that. Through these circumstances the separation which had been pending for a long time actually took place, and without a new office, without gratitude, and without any compensation of any kind I left. And in accordance with that was the publication in all German newspapers where the following notice appeared, and I quote: “Change of office in the Reich Ministry of Justice. Upon the suggestion made by the Reich Minister of Justice the Fuehrer, after effecting the transfer of Under Secretary Rothenberger, into Wartestand [Civil Service inactive status] has appointed Ministerialdirektor Klemm, who up to that time was in the Party Chancellery, Under Secretary in the Ministry of Justice.”

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b. Judges’ Letters Written by Thierack and Defendant Klemm

CIRCULAR LETTER FROM THIERACK TO JUDGES, 7 SEPTEMBER 1942, EXPLAINING THE ESTABLISHMENT AND FUNCTION OF THE JUDGES’ LETTERS

The Reich Minister of Justice

3110/2-IVa 4 1902

To:

1. The Presidents of the Reich Supreme Court and People’s Court

2. The Presidents of the District Courts of Appeal (except of Prague)

3. The Presidents of the District Courts (with extra copies for the local courts)

For information:

1. The Chief Reich Prosecutor at the Reich Supreme Court and People’s Court

2. The Attorneys General

3. The Chief Public Prosecutors

Subject: Judges’ Letters

I will, can, and must not tell the judge who is called to preside over a trial, how to decide an individual case. The judge must remain independent in order to be able to carry the full personal responsibility for his decisions. I therefore cannot order him to use a certain legal interpretation but only try to convince him how he can help the nation by correcting or regulating with the aid of the law a life that has gotten into disorder or is ripe to be brought into order.

In this respect the profession of the judge and that of the physician are akin—he gives aid to the compatriot who asks him for help and thus prevents damage to the community. The judge, like a physician, must be able to eliminate the seat of a disease or perform operations like a surgeon.

This conception of the duties of the administration of justice has already been accepted by the German jurists to a great extent. Its practical conclusions, however, have not been fully applied yet in the field of the administration of justice.

To aid the judge in fulfilling his high duty in the life of our people, I have decided to publish the “Judges’ Letters.” They shall be distributed to all German judges and public prosecutors. These judges’ letters will contain decisions, which I consider to be especially worthwhile mentioning on account of result or argumentation. With these decisions I intend to show how a better decision could or should have been found; on the other hand good, and for the national community important, decisions shall be cited as examples.

The judges’ letters are not meant to create a new casuistry, which would lead to a further ossification of the administration of justice and to a guardianship over the judges. They are rather aimed at telling how judicial authorities think National Socialist justice should be applied and thereby give the judge the inner security and freedom to come to the right decision.

The contents of these letters are confidential; the chief of an office shall keep them personally, and let every judge and public prosecutor take notice of them against receipt.

For the publication of the Judges’ Letters the collaboration of all the judges and prosecutors is needed. I expect suitable decisions from all branches of justice to be presented to me for publication. When published, neither the judge nor the tribunal pronouncing the sentence will be named.

I am convinced that the Judges’ Letters will help essentially to adjust the administration of justice uniformly along National Socialist lines.

[Typed] [Signed] Dr. Thierack

[Certified]: [Signed] Massmund

As Chief Secretary of the
Ministerial Chancery

[Stamp]

The Reich Ministry of Justice

THE FIRST ISSUE OF THE JUDGES’ LETTERS, 1 OCTOBER 1942

RICHTERBRIEFE [Judges’ Letters] Communications of the Reich Minister of Justice, Issue No. 1, 1 October 1942

Confidential

German Judges

According to ancient Germanic interpretation of the law, the leader of the nation has always been its supreme judge. When the leader therefore invests another person with the authority of a judge, this means that the latter not only derives his judicial power from the leader and is responsible to him, but also that leadership and judgeship have related characters.

The judge is therefore also the guardian of national self-preservation. He is the protector of the values of the nation and helps in the annihilation of the unworthy. He regulates those functions of life, which are considered diseases in the body of the nation. Justices vested with absolute authority are essential for maintaining a true national community.

On account of this task, the judge is the direct assistant of the leadership of the State. This position renders him prominent, but also shows the limits of his tasks which cannot, as a liberal doctrine assumed, lie in the supervision of the leadership of the State. For, if a state does not have an organization which grants the leadership to the best, the administration of justice cannot substitute this selection by its activity.

The judge is the embodiment of the wide-awake conscience of the nation. Any state is bound to fall if honesty and common sense do not form the standard of values in the national community. It is the task of the judge to see that this is done. In rendering judgment he must always show the people his adherence to this rule.

These tasks place the judge in the center of the administration of justice. They show the profession of judges as one of the earliest professions—to be compared with that of the farmer and the soldier. These tasks can only be fulfilled by men who are mentally free and honest, and who possess a high sense of responsibility, shouldering this responsibility gladly, and conforming by their inner and outer bearing to the picture of a judge as the German people see it. The judges must therefore become a corps of judges, which represent an elite of the nation. But this must not lead to the judge keeping aloof from the people; on the contrary he has to live with and among his people and know its needs and sorrows in order to be able to help.

Such a corps of judges will not slavishly cling to the letter of the law. It will not anxiously look for cover by the law, but aware of its responsibility, it will find within the bounds of the law a decision which shall be the best guide for the life of the community.

The war for instance makes demands on a judge, which are totally different from those in quiet peace times. The judge has to adapt himself to these changes. He can only do this when he knows the intentions and aims of the State leadership. The judge must therefore always be in close contact with the leadership of the State. This is the only way to guarantee the performance of his high task for the good of the community, and it prevents the administration of justice—detached from its real problems in the life of the people—from being considered as a body for its own ends. From this ensues the meaning and necessity for the guidance of the administration of justice.

Guidance in the administration of justice does not mean to impose upon the judges a certain view of the law. The judge must remain independent, otherwise he will no longer be judge. But the State can and must lay down the general line of policy, which judges must follow, if the administration of justice shall fulfill its obligations.

I have therefore decided to issue Richterbriefe which will be sent to all German judges and public prosecutors. These Judges’ Letters shall mainly contain decisions which I deem to be especially worthy of interest, because of their findings or argumentation. By these decisions I want to show how better findings could and ought to have been arrived at; on the other hand, good decisions which are essential to the community shall be held out as exemplary.

There is yet another consideration, which caused me to issue these “Judges’ Letters”—The outlined view of the judge’s tasks has carried its point with most of the German lawyers, its practical effects on the administration of justice, however, has not yet been totally realized and cannot have been fully realized yet in view of the traditional training of lawyers. Therefore, I want to help the judge by means of the Judges’ Letters to accomplish his high duties in the life of our nation. I want to impress upon him how he must help and protect the community.

The Judges’ Letters are not intended to create a new cult of decisions, which would lead to further formalism in the administration of justice and to subjecting the judges to tutelage. They are only to give an idea of how the leadership of justice wishes to apply National Socialist law, in order to give the judge self-confidence and freedom to find the right decision.

The contents of the letters are confidential; they are handed to each judge and public prosecutor by the chief against receipt.

I am convinced that the Judges’ Letters will essentially contribute to the creation of a uniformly directed German corps of judges.

Berlin, 1 October 1942

[Signed] Dr. Thierack

Reich Minister of Justice

1. PUBLIC ENEMIES, ESPECIALLY BLACK-OUT OFFENDERS[286]

Sentences imposed by several courts in the years 1941–1942

1. A 19-year-old laborer who had been employed by the Reichsbahn [Reich Railroad] since 1941, stole, soon after his appointment in the winter of 1941–1942, during black-out hours, luggage and parcels from the luggage vans of long distance trains, and parcels from mail vans. There were in total 21 charges against him.

The Special Court sentenced him to 4 years’ imprisonment as a public enemy.

2. A 34-year-old lathe operator attempted black-out purse snatching at the end of 1941. In the darkness he approached a woman in the street and snatched her handbag off her arm. He was followed and arrested. He has six previous convictions against him, among which was theft, inflicting bodily harm, and killing by negligence. He had been sentenced in respect of the bodily harm, because in 1931 he had together with a Communist knocked down a National Socialist with a fence pole.

The Special Court did not legally appraise the act as street robbery but as theft, because the woman carried the handbag only loose on her arm, so that the culprit did not have to use force. It regarded him nevertheless as a public enemy, and expressed the view, that the community should be specially protected against him. Yet the sentence imposed was but 2 years’ imprisonment.

3. A 29-year-old laborer, who was a shirker and had several previous convictions against him, tried in 1941 to commit black-out purse snatching. He had just been discharged from the hospital as a malingerer and wanted to provide himself with money. He followed two women in the darkness in the street and reached for the purse while passing them, but he could not pull it off, because it was held tightly. In answer to cries for help, some men hurried to the scene and got hold of the culprit.

The Special Court sentenced him to death as a public enemy, and added, that persons needed special protection during the black-out in order to retain the feeling of safety in the country for the people.

4. An 18-year-old culprit W., who had no previous convictions against him raped a soldier’s wife during the black-out in 1941. After having visited an inn, he accosted, about midnight while on the way home with his 19-year-old friend P., a young woman who was going home from work at that late hour. She rejected the men and said that her husband was a soldier at the front and that she wished to go home without being molested. W. hit a man, who was standing nearby and who witnessed the incident, several times in the face without cause. Then he dragged the woman into a lane, hit her, and raped her on a bench, breaking her resistance by pretending to have a revolver on him. P. was waiting nearby in the meantime but did not interfere.

The Special Court sentenced W. as a public enemy to death for rape. P. was convicted to 5 years’ imprisonment for aiding and abetting the criminal.

Opinion of the Reich Minister of Justice

At a time when the best men of the nation are risking their lives at the front, and the nation is untiringly working for victory, there is no room for criminals who destroy this will of the community. The lawyers therefore must realize that during the war it is their duty to exterminate the traitors and saboteurs on the home front. The law offers enough expedients for this. The home country is responsible to the front for peace, quiet, and order in the land. This high responsibility lies not least of all, in the hands of the judge. In principle, every crime counts more gravely in wartime than in peace. The special struggle, however, is against the “public enemies” a concept closely confined by the law. When a judge after careful examination of the punishable offense and of the personality of the accused decided that a criminal is to be considered a “public enemy,” this serious decision must also be expressed with full severity by the sentence. It is self-evident that a thief who steals goods and property from fellow citizens after the terror raids of our enemies deserves death only. But any other culprit too who commits crimes by taking advantage of the circumstances of war sides with the enemy. His faithless character and his challenge therefore deserve the severest penalties. This applies especially to the cowardly black-out criminal. “I do not want,” so the Fuehrer said, “a German woman who may go home from work at night time, to have to watch anxiously that no good-for-nothing or criminal will hurt her, for the soldier has the right to demand that his family, his wife, and his kin at home are protected.”

It can be said that the majority of the German judges have fully recognized the demands of the hour. The death sentence which was pronounced by the Special Court on the only 18-year-old criminal who raped a soldier’s defenseless wife, also meted out to the shirker who snatched handbags, justly puts the rights of the people in the foreground. There are, however, still cases in which personal consideration of the perpetrator is placed above the interests of the absolute protection of the community. This is shown by the comparison of the present judgments. The cunning handbag robbery at night by the previously convicted perpetrator and the twenty-one thefts of parcels by the 19-year-old worker are not justly punished with 2 and 4 years in the penitentiary. The decisive element here is not whether the taking of the handbag is legally to be considered theft or robbery—which, incidentally does not depend on whether it was carried loosely or pressed tightly to the body—or whether the sexual criminal has done any particular harm. The fact that in wartime he assaults in a cowardly and cunning manner a defenseless woman and that he endangers the security in the blacked-out streets puts him on a level with the traitor. The safeguarding of our community demands that in wartime in such cases punishment should serve, above all, as a deterrent. Here prevention is always better than cure. Every punishment of a “public enemy” which is too mild will sooner or later be detrimental to the community and carries with it the danger of disease-like spreading and gradual disintegration of our defense. It is always better, the judge exterminates such a bacillus in good time than having to face helplessly a contaminated multitude later on. In the fourth year of war the criminal must not gain the impression that the community relaxes in combating him; he must feel always anew that the German judge fights the internal enemy with the same determination as the soldier fights the external enemy on our fronts.

2. SEXUAL CRIMES COMMITTED AGAINST CHILDREN AND MINORS

Several Verdicts from the Year 1941–1942

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The Opinion of the Reich Minister of Justice

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3. APPLICATION FOR COFFEE RATIONS BY JEWS

Decision of a Local Court of 24 November 1941

In autumn 1940 a special coffee ration was distributed to the population of the town B. Among others a large number of Jews applied for this coffee ration which, however, they did not receive as they were excluded from the distribution per se. The food authorities saw in this conduct an offense against the distribution regulations and imposed fines on the Jews. Thereupon several hundred Jews appealed against them and asked for a court decision, so that about 500 identical cases were pending simultaneously with the local court in B. The judge informed the food authorities that in his opinion the imposing of fines could not be upheld for legal reasons—one of which was the statute of limitations—and recommended rescinding them. The food authorities did not share this legal opinion of the judge and refused to rescind the fines but suggested to the court that it mention only the point of limitation in case the fine should be set aside. Thereupon the court rescinded the fine in one case; the other cases were to be dealt with according to prescribed procedure and with reference to this decision.

This ruling, in seven sections and covering 20 pages, contains verbose interpretations of the factual and legal position. The introduction tries to justify in long tirades the length of the reasoning. Then it is set forth in detail that the Jews had been able to register with their grocers before the official announcement of the impending coffee distribution, since the distributors had been informed in advance by their respective economic groups. “The contrary interpretation on the part of the food authorities was absolutely incompatible with the established facts,” as the food authorities had “overlooked” various factors. After an entirely immaterial description of the attitude of the individual grocers toward the Jews after the announcement of the decree, the document deals in detail with the investigations undertaken by the food office. The ruling continues that the court had tried in vain to cause the public prosecutor to take over the pending cases and deal with them in the regular manner, but that it had also refused on the grounds that no punishable act had been committed by the Jews, or, at least, that it falls under the statute of limitations. After again dealing with the fruitless efforts of the court to have the food office withdraw the fines, a series of factual and legal questions are declared irrelevant, but nevertheless discussed in detail beforehand. The following nine pages of the ruling deal with the examination of the legal question whether the registration of the Jews must be regarded a punishable act according to the distribution regulations. They arrive at the conclusion that this is not the case and that it would be wrong to prove it “by means of an abstruse interpretation of the law.” The long interpretation culminates in the summarizing statement that the Jews had not committed a punishable act.

Opinion of the Reich Minister of Justice

The ruling of the local court, in form and content amounts to pilloring a German administrative authority by the Jews. The judge should have put himself the question: How will the Jews react to this 20-page-long ruling, which certifies that he and the 500 other Jews are right and that he won over a German authority without losing one word about the reaction of our own people to this insolent and arrogant conduct of the Jews. Even if the judge was convinced that the food office had arrived at a wrong judgment of the legal position, and if he could not make up his mind to wait with his decision until the question, if necessary, was clarified by the higher authorities, he should have chosen a form for his ruling which under any circumstances avoided harming the prestige of the food office and thus putting the Jew expressly in the right. The freedom from punishment for the unauthorized coffee registration was, even according to the law then in force, definitely doubtful. The fact that Jews were not entitled to a supply of genuine coffee was self-evident even if it was not specially mentioned in the official decree. Registration had taken place by presentation of a coupon of the ration card and by having this card stamped. If, considering the special circumstances of this case, this had been construed as an abuse of the right to draw rations, it could have resulted in an affirmation of the punishable character of their act. The impudent, provoking conduct of the Jews would have made it a “particularly serious case.” In this case an offense could legally have been assumed. To such an offense a longer statute of limitations would have applied.

A legal view of this kind on the part of the food office need not have been regarded as “untenable,” “fabricated,” or “abstruse.”

Apart from this it was not necessary to point out to the Jew that he was only one of many members of his race who also had complained. Just as superfluous was the information that the food office in the preceding negotiations had refused to withdraw the fines and that the local prosecutor, through its refusal to take up the case, had also shown its opposition to the food office. These points were irrelevant to the ruling. The Jew could perforce only gain the impression of a dissension between the various authorities. Instead of this a few sentences of the ruling, dealing merely with the statute of limitations, would have been sufficient if the judge denied the punishable character of the offense.

The voluminous argument of the case would not even have been necessary if the case had involved a German. The order of the Fuehrer in the decree of 21 March 1942 on the simplification of the law that “court rulings must be given in short and concise form and must be limited to the absolutely essential” was already a wartime necessity. The German fellow citizen does not expect verbose and learned statements from the judge. The various ancillary and incidental considerations which guide the judge in his decision do not interest him. He wants to be informed by a few easily understandable words on what grounds he was found right or wrong.

4. VIOLATION OF FOREIGN-EXCHANGE REGULATIONS BY A JEW

Verdict by a District Court of 26 May 1942

The defendant, a 36-year-old Jew, had in 1936 taken possession of his deceased father’s textile firm. In 1938 he emigrated to Holland. In 1941 he was arrested in Amsterdam.

The defendant is guilty of a number of cases of illicit dealings. His activities began when he, as the chief heir of his father, ostensibly renounced his inheritance in favor of his sister who was a foreigner with the intention of depriving the German foreign currency control of the entire domestic and foreign fortune; simultaneously he made an agreement with his sister that everything should remain as it was. From their holdings in a firm in Holland which, as a subterfuge, were transferred to a dummy, the Jew and his fiancee received about 100,000 Dutch guilders in 5 years, which were not offered to the Reich Bank. He also disposed of the proceeds from various houses without a permit. As for the Dutch firm, which was practically his own, he deceived the Reich Bank for several years by pretending that he had nothing to do with it, and that moreover it was in the red and unable to repay a loan. In doing so he cheated the German authorities by producing forged balance sheets. Finally, after the Aryanization of his firm, he tried to persuade the new owners, former employees of his, through reduction of his claim by 80,000 RM, to bring 40,000 RM across the border to Holland without a permit. When his property was registered as “Jewish property” the defendant concealed considerable assets. He defended himself mainly by asserting that all these offenses were only the continuation of his father’s violations of foreign currency regulations and that he was under the influence of his sister.

“For the reason given by the defendant” the district court did not find it a grave offense in the sense of article 42 of the Foreign Exchange Regulation of 4 February 1935, nor of article 69 of the Foreign Exchange Regulation of 12 December 1938. It sentenced the defendant to a total of 2 years’ imprisonment, making allowance for the pretrial detention and to a fine of 9000 RM.

The verdict, in the accompanying opinion, discusses first of all facts that might be extenuating and mentions that the defendant had not previously been convicted; he had acted under a certain coercion, owing both to his father’s doings and to his sister’s obstinacy. One offense by necessity led to the next. Through his confession he had considerably facilitated clearing up the facts. On the other hand, the long duration of his offenses, his fraudulent conduct toward the German authorities, and the requests he made of his former employees were cited as demanding a heavier punishment.

Opinion of the Reich Minister of Justice

The court applies the same criteria for imposing punishment as it would if it were dealing with a German fellow citizen as defendant. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this war. In doing so, he has brought unspeakable misery upon our people. Not only is he of different but of inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the meting out of punishment. Here, where a profiteering transaction typical of the defendant as Jew and to the disadvantage of the German people had to be judged, the verdict in awarding the punishment must take into consideration in the first place that the defendant had deprived the German people for years of considerable assets. He had, as innumerable members of his race have done before him, ruthlessly and for deliberate selfish reasons violated the most vital German interests by profiteering and fraud. He has abused Germany’s hospitality, which had enabled him and his father to pile up a huge fortune, and finally has not hesitated to instigate German men who depended on him economically to serious violations of foreign currency regulations, violations which endangered their very existence. From these general points of view of the German people the question had to be clarified whether this was a particularly serious case; it did not suffice here to rely solely on the rather unconvincing statements of the defendant himself, who could not have been under coercion for 4 years, but acted in his own interests and on his own initiative. This typical Jewish parasitical attitude required the most severe judgment and heaviest punishment. The reflections of the Jew and his family, in this respect, are of very minor importance.

5. CONCEALMENT OF THE REQUIRED DESIGNATION AS JEW

Verdict of a Local Court of 24 April 1942

A Jewish proprietress of a boarding house had failed to apply for the addition of the surname Sara in the official telephone directory 1940 and 1941. The local court sentenced her to a fine of 30 RM, or an alternative of 10 days’ imprisonment. In the opinion it says: According to the ruling of the local court, Jewesses are obliged to add the name Sara to their names in the telephone directory. Therefore, the Jewess is to be fined. The reason for the mild sentence was the fact that sometimes individual judges had not ruled in conformity with the local court.

Opinion of the Reich Minister of Justice

The verdict contains no grounds for the sentence. The reference to a ruling of the district court does not free the judge from offering an opinion of its own; on the contrary, it rather gives the impression as if the judge had half-heartedly and reluctantly submitted to the authority of the district court. The verdict should give the essence of the grounds in a short and concise form. Here the essence is the following: when she registers in the official telephone directory, the defendant enters into general legal and commercial life as the proprietress of a boarding house. The registration in the telephone directory is in the nature of the subscriber’s visiting card for telephonic business relations. Application for change of name is therefore absolutely necessary in order to avoid mystification.

Moreover the grounds for awarding the punishment are not sufficiently set forth. The verdict must make a clear decision—if the court finds an action punishable, then it has to award the punishment appropriate for this action regardless of whether other courts have, because of incorrect deductions, acquitted the culprit. The idea that the defendant did not have to expect a sentence with certainty because the court rulings, owing to deviating verdicts, were not yet uniform does not justify leniency. The court which is lenient because of one single wrong judgment actually compromises with the defendant. But what she did was a typically Jewish camouflage in her business dealings. It is surprising that people are only gradually realizing this.

EXTRACTS FROM ISSUE NO. 3 OF THE JUDGES’ LETTERS, 1 DECEMBER 1942, SUMMARIZING TWO CASES AND GIVING IN EACH CASE THE OPINION OF THE REICH MINISTER OF JUSTICE

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13. FORGERY OF A TESTIMONIAL BY A CLERK

Judgment of a local court of November 1942

A 19-year-old, so far unpunished clerk, who had worked in a firm of machine tool makers wanted to be employed in a larger enterprise. For this purpose she made herself out a testimonial of her present firm in which she confirmed that she was efficient and able to cope with an “independent leading position.” She forged the signature of her chief by tracing it from the signature folder and copying it with ink. This brazen forgery was immediately discovered when the testimonial papers were submitted to the new firm, to which she had been referred by the labor office.

The prosecution sees in the action of the part of B. severe forgery of documents (pars. 267 and 268 of the Reich Criminal Code) on account of the fact that the forgery was committed for monetary gain. The proposed penalty was 2 months’ imprisonment and a fine of 30 reichsmarks.

The local court saw in this offense the given facts as contained in the former paragraph 363 of the Reich Criminal Code which provided imprisonment or a fine up to 150 reichsmarks for forgery of testimonials for the purpose of improvement of one’s position. As this ruling, however—this is what it says in the judgment—has been rescinded through the law of 4 September 1941 and has been substituted by the new paragraph 281 of the Reich Criminal Code (misuse of identity papers)—which however does not apply in this case as the testimonial is not a document of identification—the court has only to regard the action of B. either as a grave forgery of a document according to paragraphs 267 and 268 of the Reich Criminal Code or “again to apply the provision of paragraph 363 of the Reich Criminal Code despite its having been cancelled and to consider it still in existence in accordance with the sound sentiments of the people and in accordance with the will of the legislator insofar as the provisions of paragraph 281 of the Reich Criminal Code are not complied with.” The court assumed the alleged second possibility. “Working on the principle that nowadays the judge is no longer obliged to adhere slavishly to the exact letter of law, the court found the accused guilty of having forged a testimonial according to paragraph 363 of the Reich Criminal Code.”

The sentence was 3 weeks’ arrest.

On passing sentence the judge remarked that the convicted person may be placed on probation, which was later granted.

Opinion of the Reich Minister of Justice

It is correct that nowadays the judge should no longer have to adhere strictly to the letter of law in a slavish way. This freedom in applying the law should, however, not lead the judge to base judgment on a law, which the legislator has cancelled. Moreover, the manner in which paragraph 363 of the Reich Criminal Code is applied assumes a law which is still in existence. Paragraph 363 of the Reich Criminal Code was cancelled because particularly during the war it was no longer possible to counter all forgeries of certificates generally with the purpose of furthering one’s advancement merely by light contravention punishment. The many opportunities of changing one’s job frequently these days offer the temptation to facilitate this change of position through such forgeries of testimonials. Such temptation must therefore be countered by a threat of more severe penalty than was provided by the former paragraph 363.

This generally more severe measure applied to such cases does not, however, prevent from justly taking into consideration the particular circumstances of individual cases within the framework of now existing law codes, if the offense as in this instance is really a mild one. The judge sensed correctly that B.’s offense corresponded to the degree of guilt of the former paragraph 363. He could have provided for this also under existing laws.

B. is a yet young and inexperienced girl of whom one may assume that she was not entirely conscious of the extent of her deed. This impression is confirmed by the primitive means of the forgery. B. endeavored to leave her present firm in order again to work in a larger enterprise. For this reason she wished to make her recent activity appear to the best advantage. It cannot simply be assumed that she thought of a better paid position in doing so, especially as it is not so simple to secure such a position under wage scales in force at present. In consequence, it could be rejected that she sought a monetary gain. Thus only an ordinary document forgery could be dealt with in accordance with paragraph 267 of the Reich Criminal Code. As the penal code did not demand imprisonment, having regard to the special circumstances of this case, the judge could have imposed a fine according to paragraph 27b of the Reich Criminal Code.

The payment of this fine would have more forcibly brought home to the still young B. the antisocial action of this deed rather than an imprisonment, which the judge immediately postponed.

14. REFUSAL BY A SCHOOL CHILD TO GIVE THE GERMAN SALUTE

Decree by the Court of Guardians of 21 September 1940

An 11-year-old girl is conspicuous in school through continuously refusing the German salute. She bases this on her religious convictions and cites in explanation some passages from the Bible. In matters concerning the Fuehrer she appears altogether disinterested.

The parents, who also have a 6-year-old daughter, approve of this behavior of the child and obstinately decline to influence the child to the contrary. They also refuse to give the German salute and point to the passage in the Bible, “Do nothing with an upraised hand for it displeases the Lord.” They adhere to this in spite of advice by the court and the director of the school. The mother refuses altogether to discuss it with the child. The father is willing to do so, but says that the child should decide herself. The parents prove themselves to be adversaries of the National Socialist State also in other respects. They possess no swastika flag. They did not enter their child for the Hitler Youth: they were expelled from the National Socialist Public Welfare Association, because they will not support the collections, despite an adequate income of the man. Nevertheless they deny being adversaries of the movement. The juvenile board suggested that the parents should be deprived of the right to bring up the two children on account of their attitude.

The guardianship court refused to carry out this proposal and merely made an order for supervision by a probation officer.

In the explanation, the court stated that it had not been proved that the parents were adversaries of the National Socialist movement or that they really had fought against it; they were merely “not sympathetic to the movement and not willing to promote it.”

It was stated furthermore that “the parents are only in so far responsible for their attitude toward the National Socialist movement as they act contrary to the relevant penal laws.” The parents must realize that the children must be brought up in the National Socialist spirit and that the schools have instructions to educate them in that spirit. If the parents are not willing to bring up their children in that spirit themselves, or if they believe that their religious views do not allow them to bring up their children in that spirit, the least that must be demanded from them is not to oppose National Socialist education at school. Owing to the fact that the child is well brought up in other respects and that—judging from the court’s personal impression—the parents are “of absolutely reliable character,” it may be assumed that in future they will not give the school any trouble with respect to education.

The court of appeal rescinded the decision of the guardianship court and deprived the parents of the right to look after their children, as they are not fit to bring them up.

Opinion of the Reich Minister of Justice

The judge at the guardianship court in his decision misunderstood the principles of National Socialist education of youth.

Today, the education of German youth is based on the home, the school, and the Hitler Youth (law regarding the Hitler youth of 1 December 1936). They have to cooperate and each of them has to carry out that part of the educational task allotted to him by the community. The aim of this joint work consists in educating the young people in body, in mind, and morally in the National Socialist spirit for service to the nation and for the community.

This aim can be reached only by joint cooperation of the home, the school, and the Hitler Youth. Any opposition to and any deviation from this education endanger the common aim. An essential part of this education as well as a particular responsibility have been laid into the hands of the parents. They are united with the child by ties of blood. The child lives close to them and constantly looks to the habits and the example of the parents. To educate means to guide. To guide means to set an example by your way of life. The child models his way of life on the example of his parents. What the child hears and sees there, especially in early youth, it becomes accustomed to by degrees and accepts it as a rule of life. Therefore, the educational aim of the National Socialist State can only be achieved if the parents, conscientiously and aware of their responsibility, give their child in thought and deed a model example for its behavior in the community life of our nation. To this education of German man or woman belongs also the imparting of respect and awe for the symbols of the State and the movement at an early stage. Here, too, the community expects active cooperation on the part of the parents. A reserved neutral attitude is as harmful as attacking the National Socialist idea. Thus, indifference to the training of a patriotic member of the national community means neglect of duty on the part of the parents and endangers the educational aim for the child, even if this is not immediately apparent in each case. For this reason, it is not enough that in the present case the parents will not oppose the school in the future, they are supposed to cooperate actively in their children’s education as a whole. Thus, the responsibility of the parents does not start where its violation becomes punishable. The child is often being endangered if the parents consciously oppose the educational work of the community. That was the case here. Who continues to refuse the German salute on account of erroneous religious beliefs, who separates himself from the great social work of construction of national socialism without any reason, and who purposely withholds his children from the Hitler Youth and never takes advice, of him it can no longer be said that he merely “does not sympathize” with the movement and does not promote it. He attacks it by his opposition and is its adversary. This is proved by his convictions and by his inner attitude.

Thus, the judge of the guardianship court ought to have deprived them of the right to look after their children simply by consideration of the fact that parents, who openly profess the ideas of the “Jehovah’s Witnesses,” are not fit to educate their children in the spirit of national socialism.

LETTER FROM THIERACK TO PRESIDENTS OF VARIOUS DISTRICT COURTS OF APPEAL, 17 NOVEMBER 1942, CONCERNING MANNER OF ACQUAINTING JUDGES AND PROSECUTORS IN ALSACE, LORRAINE, AND LUXEMBOURG WITH THE JUDGES’ LETTERS

The Reich Minister of Justice

m Rb./34/42

To the Presidents

of the District Courts of Appeal and the Attorneys General in Karlsruhe, Cologne, and Zweibruecken

Subject: Judges’ Letters.

May I ask you to make it a habit to give the judges and prosecutors in Alsace, Lorraine, and Luxembourg, too, an opportunity to acquaint themselves with the Judges’ Letters. In cases where judges and prosecutors are suspected of political unreliability, they are to be excluded in a suitable manner from the list of subscribers to the Judges’ Letters.

[Typed] [signed] Dr. Thierack

Certified:

[Signed] Beitz

Clerk

[Seal]

Reich Ministry of Justice

ANNOUNCEMENT OF MARTIN BORMANN, PARTY CHANCELLERY CHIEF, 2 DECEMBER 1942, REQUESTING GAULEITER TO INFORM THE PARTY CHANCELLERY OF THEIR OPINIONS ON THE JUDGES’ LETTERS AND OF GOOD AND BAD VERDICTS[287]

p. 377 ff.

Judges’ Letters

Party Comrade Dr. Thierack, in his capacity as Reich Minister of Justice, appeals to all German judges and public prosecutors, by way of confidential Judges’ Letters, to bring German justice in line particularly with the political exigencies of justice. I will see to it that the Judges’ Letters are passed on to the Gauleiter, and I request them to give their opinions, where necessary, on all proposals and suggestions made by the Reich Minister of Justice in these Judges’ Letters.

Furthermore, I request the Gauleiter to inform the Party Chancellery of good and bad verdicts, as far as they come to their knowledge, and as far as they may be used in the Judges’ Letters. We will then discuss the relevant parts with the Reich Minister of Justice.

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LETTER FROM DEFENDANT KLEMM TO THE PRESIDENT OF THE STUTTGART COURT OF APPEAL, 5 JULY 1944, STATING SENTENCES IN THAT AREA WERE TOO LENIENT, PARTICULARLY IN CASES IN WHICH DEFENDANT CUHORST PRESIDED[288]

COPY

The Reich Ministry of Justice

IV secret I 5045/44

Berlin W 8, 5 July 1944

To the

President of the District Court of Appeal

(Oberlandesgerichtspraesidenten)

and to the Attorney General

in Stuttgart

Subject: Practice [Rechtsprechung] of the District Court of Appeal
(Oberlandesgericht) Stuttgart
in cases of defeatism

For some time now the practice of the criminal senate of the District Court of Appeal Stuttgart has given me cause for grave thoughts with regard to matters of defeatism. In the majority of cases the sentences are considerably too mild, they do not sufficiently bear in mind the thought of the protection of the people which must govern the punishment of defeatism, and are in an incompatible disproportion to the sentences which are in similar cases passed by the People’s Court and by other district courts of appeal. I would refer especially to the following sentences which lately attracted my attention:

1. Criminal case against Friedr. Linder—OJs. 205/43—, sentence of the 2d criminal senate of 7 January 1944 (President of the Senate Dr. Kiefer, District Court of Appeal Counsellor (Oberlandesgerichtsrat) Dr. Stuber, and Hegele, presiding officer of a chamber at the court of appeal (Landgerichtsdirektor)). You made a report under date of 28 April 1944 on this case on the sentence. In view of the danger and of the frequency of the statements made, I must maintain the interpretation already expressed in my decree of 15 March 1944—IV secret I 5045 b/44—that the defendant, a foreigner, deserved a severe sentence of penal servitude. I have therefore directed the files to the Chief Reich Prosecutor at the People’s Court to examine the question whether the extraordinary objection should be applied against the sentence.

2. Criminal case against Karl Unger—OJs. 203/43. Sentence of the 1st penal senate of 22 February 1944 (President of the Senate Cuhorst, Oberlandesgerichtsrat Dr. Stuber, and Oberlandesgerichtsrat Eckert).

The defendant is an old active Communist who apparently remained an activist also after the assumption of power and who has not given up his former opinions. His age and the illness, to which you refer in your statement of 17 May 1944, did not prevent him again to make malicious Communistic oral propaganda at an especially dangerous time. I must, in these circumstances, consider the sentence passed of 2 years’ penal servitude, as being much too mild. I have therefore directed this case also to the Reich Chief Prosecutor at the People’s Court.

3. Criminal case against August Jooss for aiding and abetting the enemy—OJs. 41/44—judgment of the 1st penal senate of 14 April 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Dr. Bohn).

The foul defeatist statements made to the French civilian worker were dangerous to such a degree that even the mentally deficient defendant must have known about the consequences, and they show a frightening measure of lack of national dignity. The sentence passed of 2 years’ penal servitude must in these circumstances be described as inadequate.

4. Criminal case against Johann Kornmayer—OJs. 31/44. Sentence of the 1st penal senate of 24 April 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Dr. Bohn, and Oberlandesgerichtsrat Dr. Stuber).

The reasons aggravating the punishment which were appropriately stated in the sentence should have resulted in sentencing the defendant, an old Marxist, to a considerably higher sentence than 3 years’ penal servitude.

5. Criminal case against Paul Friebel—OJs. 32/44—sentence of the 1st penal senate of 4 April 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Hegele, and Oberlandesgerichtsrat Eckert).

The defendant spoke in an especially critical period, in favor of a capitulation after the Italian example. I cannot accept the sentence of 1 year’s prison term as a sufficient punishment.

6. Criminal case against Clothilde Radspieler—OJs. 26/44—sentence of the 2d senate of 9 March 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Payer).

The sentence passed of 1 year’s prison term is not in proportion with the particularly dangerous remarks made, even taking into account the mitigating reasons of the personality of the defendant.

7. Criminal case against Heinrich Brechtel—OJs. 221/43—sentence passed by the 1st penal senate on 24 February 1944 (President of the Senate Cuhorst, Oberlandesgerichtsrat Dr. Stuber, and Oberlandesgerichtsrat Eckert).

There are considerable doubts about the negation of the inner facts of the case, the defeatism, in view of the political past of the defendant and the undisputable meaning of his remarks. In any case the sentence of 1 year’s prison term cannot be regarded as sufficient in the case of this old Marxist who saw a new light dawn after the fall of the Duce and who openly expressed his hostility towards the State.

8. Criminal case against August Meier—OJs. 14/44—sentence of the 1st penal senate of 26 April 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Dr. Bohn, and Oberlandesgerichtsrat Dr. Stuber).

In this case also the especially dangerous remarks of the defendant made to the wife of a soldier and to a soldier have been punished with a sentence of 1 year’s prison which sentence is in no way satisfactory. I intend, also in the cases 3 to 8, to submit the files to the Reich Chief Prosecutor at the People’s Court for examination of the question whether the extraordinary veto should be applied against the sentences passed.

9. Criminal case against Maximilian Seebacher—OJs. 196/43—judgment of the 2d penal senate of 10 February 1944 (President of the Senate Dr. Kiefer, Oberlandesgerichtsrat Dr. Sick, and Oberlandesgerichtsrat Dr. Stuber).

In the case of this defendant who, as a former Marxist, openly expressed his hope for an overthrow by violence, a severe penal servitude sentence would have been appropriate in place of the 2 years’ prison. In this case, however, for the reasons mentioned in your statement of 27 and 28 April 1944, I shall put aside my objections and refrain from further action.

10. Criminal case against Leo Graf—OJs. 22/44—judgment of the 1st senate of 22 February 1944 (President of the Senate Cuhorst, Oberlandesgerichtsrat Dr. Stuber, and Oberlandesgerichtsrat Eckert).

This defendant who had repeatedly propagated the abdication of the Fuehrer, would have deserved a considerably severer sentence than the 10 months of prison term passed. For the reasons stated by you, Attorney General, in your report of 8 May 1944, the sentence passed may, however, be accepted as just adequate.

11. Criminal case against Alois Baum—OJs. 22/43 of the 1st penal senate of 25 February 1944 (President of the Senate Cuhorst, Oberlandesgerichtsrat Dr. Stuber, Oberlandesgerichtsrat Eckert).

This defendant, particularly as an old Party member, should have shown more self-discipline. The annoyance about his treatment at the post office was certainly not sufficient reason to make such foul defeatist remarks. In view of the danger of these remarks, the sentence of 2 years’ prison term demanded by the representative of the prosecution would at least have been appropriate. In view of the serious physical ailment of the defendant I shall, however, refrain from any further action.

12. Criminal case against Karl Peter—OJs. 28/44—sentence of the second penal senate of 18 April 1944 (President of the Senate Dr. Kiefer, Oberlandesgerichtsdirektor Dr. Sick, and Oberlandesgerichtsrat Dr. Stuber).

The sentence of 2 years’ penal servitude passed on this defendant appears to me precariously mild. Even if he be a mentally somewhat deficient boaster he has, in an attitude of hostility toward the State, continually incited others in an especially hateful manner. I shall, however, refrain from submitting the files to the Reich Chief Prosecutor.

At the meeting at Kochem I requested the President of the Senate to explain, in what manner in the fifth war year cases of defeatism should be tried. I believe that I may now expect that the District Court of Appeal (Oberlandesgericht) Stuttgart will also pass judgments accordingly. It is indispensable that you, President of the Oberlandesgericht and you, Attorney General, will in future direct your special attention to these criminal cases. I further request you, Attorney General, to report to me until further notice when submitting indictments for defeatism, what sentence you intend to demand in the main trial so that I may point out possible objections with regard to the measure of punishment.

As deputy

Certified: [Typed signature] Klemm

[Typed signature] Grundmann

First Judicial Secretary

LETTER OF DEFENDANT KLEMM TO THE PRESIDENT OF THE HAMBURG DISTRICT COURT OF APPEAL, 1 MARCH 1945, STATING THAT SENTENCES IN CASES OF “UNDERMINING THE MILITARY EFFICIENCY” OF GERMANY HAVE BEEN TOO LENIENT

The Reich Minister of Justice

IV g-23-3118/45

To the
President of the District Court
of Appeal
and the
Attorney General
in Hamburg

Subject: Too lenient sentences and sentences proposed by the prosecution in cases of undermining the military efficiency

I have observed for quite some time that the sentences passed and to some extent also the sentences proposed by the prosecution at the Hamburg District Court of Appeal in cases of undermining the military efficiency (offenses under par. 5, art. 1, No. 1, Extraordinary War Penal Ordinance) are dangerously lenient and below the Reich average. With unusual frequency I have had to decide therefore to propose extraordinary objection to sentences pronounced by the District Court of Appeal. Recent sentences submitted to me which appear to be too mild, cause me to draw your attention to the particularly lenient sentences passed in the following cases:

1. O. Js. 184/44 (IV g-23-3118/45) against Bastian u.T.[289]

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The judge in charge as well as the deputy of the attorney general must proceed from the fact that public undermining the military efficiency is punishable by death, according to article 5, paragraph 1 of the extraordinary war penal ordinance;[290] only in less serious cases may the death penalty be waived. Therefore, the death penalty has to be demanded not only if an especially serious case is under consideration, but an offense of average gravity is sufficient to render the provisions of article 5 of the ordinance applicable. Only those cases can be considered less serious, where the gravity of the offense is below average. The jurisdiction of the Reich Supreme Court has developed the principle that a less serious case can be considered as such only “if the facts of the case distinguish it fairly clearly from the usual type of the punishable act in question, in favor of the accused and if the over-all assessment of the circumstances, especially the offender’s personality and the circumstances which might have induced him to commit the offense, justify a deviation from the regular jurisdiction” [handwritten: “usual punishment”]. This principle also applies to cases of undermining the defensive power with the reservation that on account of the particular danger in wartime far less importance can be attributed to extenuating circumstances arising from the personality of the criminal than in connection with other crimes.

*******

It is justified that the sentences should go by the effect of the remarks. In some sentences remarks can be found like, “Serious harm has not resulted from his action.” I doubt whether in such cases the repercussions of the remarks have been followed up to the end. Their effect on the audience can be determined through their interrogation; however, it is difficult to determine whether this audience has passed on the remarks, and what impression they made on third and fourth persons. Reasons of this type are therefore only justified if extensive investigations with definite results have been instituted.

In the sentences cited above there are among the reasons for the award of punishment, statements about the personality of the offender, the extenuating consequences of which are doubtful, for instance—

“Especially hard life.”

“Uprooted by the Russian revolution.”

“Lets himself go frequently because of his rather surly nature.”

“He has been a good comrade.”

“People with a disorder of the stomach, as we know from experience, are inclined to be disgruntled.”

“He may have been annoyed about a certain phrase in the radio lecture in question.”

“He had to suffer under the Jewish boycott movement during his activities abroad.”

(That should rather be a reason for more severe punishment).

“The accused has been happily married to her husband, a veteran of the movement. She maintains she also got along very well with her husband as far as political matters were concerned.”

(That, too, in consideration of the grave utterances—OJs. 275/44—should not serve as an extenuating but as an aggravating reason, as on account of living together with a veteran of the movement, the woman should have been better educated than others in National Socialist sentiment and thought.)

Please discuss the sentences as well as my opinion about them in the proper way with the judges and public prosecutors in question, and see to it that in all cases of undermining the military efficiency the required severe punishment will be meted out in your area, too.

Acting

Klemm

Certified:

[Signed] Schreiber

Clerk

[Stamp]

Reich Ministry of Justice

Chancellery of the Minister

EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[291]

DIRECT EXAMINATION

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Dr. Schilf (counsel for defendant Klemm): Now we have finished with the group of questions which concern the Party Chancellery. Now, we are coming to the last phase, that is, your work as Under Secretary of the Reich Ministry of Justice.[292] The Tribunal knows when you became Under Secretary. Now, I am asking you, did you, yourself, have any influence on your appointment to be Under Secretary in January 1944?

Defendant Klemm: No, I did not. During the last 3 months of 1943 I heard Thierack say to me that he was thinking it over whether he should propose me to be his Under Secretary; then, I heard nothing more. I only told the head of my department at the Party Chancellery about that remark of Thierack’s.

*******

Q. Mr. Klemm, we shall now discuss the subject of Judges’ Letters and also the so-called Guidance Letters [Lenkungsbriefe]. You know that the prosecution submitted a very extensive amount of evidence in regard to this subject.

First I want to ask you about the Judges’ Letters. In what manner did you participate in Judges’ Letters?

For the information of the Tribunal, I would like to cite the documents that are concerned with this question. They are Exhibits 81 through 86, 90, and 94 to 96 inclusive. The NG numbers are given on the list which I have submitted. Since the documents do not have to be discussed individually, I believe it is sufficient to refer to exhibit number.

Please answer my question, Mr. Klemm.

A. The Judges’ Letters had already been issued for more than a year at the time when I became Under Secretary. I cannot say anything about the history of their origin. My participation was limited to having a carbon copy of the finished Judges’ Letters submitted to me in draft form. Thierack was given a copy at the same time. When looking it over, I had to start from the point of view of not only the selection of the cases which had to be treated and the subjects, but also of the fundamental opinion of Thierack which had already been laid down by him in advance. Technical changes would have been of little avail, since Thierack looked at these drafts word for word and changed them considerably. He regarded the Judges’ Letters as his own exclusive province.

Moreover, of the letters which the prosecution has submitted here, I myself participated only in the Judges’ Letters, Document NG-321, Prosecution Exhibit 86.[293] All of the other letters date from the time prior to which I was Under Secretary.

Q. The prosecution regards the Judges’ Letters, from the point of view of their contents as well as their form, as an illegal pressure exercised on judges and jurisdiction at that time. It asserts that it was a serious intervention into the independence of judges. When you were concerned with the Judges’ Letters, did you consider that effect? Did you fear it, or did you support it, or did you see those matters from a different point of view than the prosecution asserts here?

A. I wish to say the following about that. The thought never occurred to me that the impression could be created at all which the prosecution today raises as a charge. The sentences were incorporated into the Judges’ Letters anonymously, that is to say, without stating the name of the court, without stating the name of the condemned person or even the name of the judge, or the time. Through that, it was intended to be emphasized, especially by this means, that the question of general interest and not the individual case was at stake, nor the praise or the blame of a judge. By the manner in which these matters were incorporated into the Judges’ Letters, in particular, the judge could not feel himself being addressed directly, as usually occurs in legal journals, in which these sentences are published in the legal press with the full naming of the court, the file number and the date, and then there usually follows the discussions of the opinion.

That the Judges’ Letters were confidential was not due to the fact that they had to be afraid of showing themselves in public, or that something that was incorrect was supposed to be covered up. The reason was rather the following; the truthful presentation of the case, and they were not hypothetical cases reported in the Judges’ Letters, but those which had actually occurred. Thus, I am saying that the truthful presentation of a case could not always keep the judicial decisions anonymous, but it was intended to avoid—also to the advantage of the person who was condemned—that he not all over again be exposed to public criticism. Furthermore, it was also intended to prevent that the public may learn of the wide and general criticism of one court by another.

The National Socialist press, in its total character, was exclusively hostile to the administration of justice, and the administration of justice in particular had to suffer the most unbelievable attacks in the Nazi press. The press would have jumped at these Judges’ Letters in order to criticize the administration of justice, and would have said, “The offices of the administration of justice themselves state how wrong the attitude of the administration of justice is.” Above all, however, it was intended to be avoided that the Judges’ Letters would be interpreted in an entirely wrong direction—that is, through the general public—in clemency pleas, that in a false lay comparison, by referring to Judges’ Letters, a claim for a pardon would be raised.

In addition to that, the Judges’ Letters were intended to be the basis for a friendly discussion between the highest authorities of the administration of justice and the individual judge. Judges and prosecutors were requested expressly—by the Judges’ Letters themselves—to address requests in regard to the Judges’ Letters directly to the Minister of Justice, and they were told that they were not forced to go through channels. Every judge and prosecutor was supposed to be a direct collaborator in these Judges’ Letters, and in this direct way letters reached the Ministry of Justice.

*******

Q. We can now interrupt the subject of the Judges’ Letters. May I inform the Tribunal I intend to submit more evidence in my document book in regard to this subject. Now we come to two so-called guidance letters which bear your name, Document NG-676, Prosecution Exhibit 178 and Document NG-627, Prosecution Exhibit 474.[294] These letters concern information issued by the Reich Minister of Justice which you signed as Thierack’s deputy. Witness, the first went to the president of the district court of appeals in Stuttgart. That is Exhibit 178. The second one is to the president of the district court of appeals in Hamburg. That is Exhibit 474. The contents of these documents show that undermining of military efficiency was the subject. The sentences by these courts of Stuttgart and Hamburg were criticized as being too lenient by the minister—that is by you—because they were signed by you as deputy. Please describe to the Tribunal how these two letters came about.

A. Undermining of military efficiency was regarded as particularly dangerous. The reason for it was the experiences which Germany had in 1918 when the German armies were far in enemy territory and through the failure at home sufferable peace was prevented. Therefore, undermining of military efficiency was already in 1939 introduced by law as a subject for penalty. Care was to be taken that the will for tenacity and the inner strength and hope and faith in a sufferable end of the war would be maintained. In view of the successes which the German Wehrmacht had the first years of this war and also during the middle of the war, we hardly heard anything about reverses at that time with the exception of Stalingrad. Thus, this crime never occurred. Only toward the end of the war when the military situation got worse, the prosecution had to send the indictment and the opinion to the Ministry of Justice. These matters were handled in the Referat, the department of Franke, in order to get a uniform picture of the jurisdiction. It was also important to pay attention to the fact that the penalties were uniform in the different districts of the Reich.

If it happened that in individual cases there were considerable misgivings against the legal evaluation or the extent of the penalty, the files were submitted to the Oberreichsanwalt, the Chief Reich Prosecutor, for review as to whether a further means of legal recourse was necessary. The misgivings, however, referred not only to sentences that were too lenient, but also to sentences that were too severe. Only in the latter case it was simpler. One could help by means of a clemency plea. I here have to insert that neither the minister nor I, myself, saw the opinions in cases in regard to the undermining of military efficiency with the exception of those cases in which the execution of a death sentence which had been issued was pronounced or cases in which the Referent or department chief requested the introduction of a legal recourse. A longer observation of the sentences in the Referat, or department, could then show that a certain district deviated from the generally recognized principles in its sentences, especially from the principles recognized by the Reich Supreme Court.

Presiding Judge Brand: Mr. Klemm, I think you fully explained the reasons why you desired to have uniformity. Now this particular exhibit indicates that in this particular instance you complained of sentences being too mild. You have explained the reasons which underlay your theory in the matter, and I think you have covered it sufficiently. We must avoid such continuous repetition, Mr. Schilf.

Dr. Schilf: Mr. Klemm, therefore let us go concretely to the contents of these two letters. How did it happen that these two letters as such were written? I believe it will be necessary to bore the Tribunal with that still because your name is under this letter.

Presiding Judge Brand: Counsel, you are not boring the Tribunal, nor is the witness. But we have the substance before us at this moment of these letters and you need not ask the witness what the substance of those letters were. We are here to try the case fairly and we don’t want counsel to worry about boring us, but we do want counsel to worry about undue explanations and too long explanations. Ask your next question.

Dr. Schilf: Please state the practical cause how these letters happened to be written. Due to the decision of the court, you do not have to discuss the contents any more.

Defendant Klemm: The method for writing such letters had already been established long before I entered the Ministry of Justice. If cases accumulated in one district, the president of the district court of appeal who was concerned received a letter so that in future cases a general just sentencing, as it happened in the entire Reich, would take place.

Presiding Judge Brand: Why did you write this particular letter? Just ask him why he wrote the particular letter shown in Exhibit 178.

Defendant Klemm: These cases had been collected in the Referat—in the Department—and then they were reported to the minister and the minister determined whether such a guidance letter was supposed to be written. In these two cases of Stuttgart and Hamburg, Franke and Vollmer, the department chief, reported to the minister about the jurisdiction exercised by these district courts of appeal and suggested to compile the most extreme cases and to call them to the attention of the presidents of the district courts of appeal. The minister approved of this suggestion and in addition to that determined that I had to sign these letters. That in these letters, the first person singular “I” was always used, is the accepted official style. To that extent I may refer to Exhibits 48, 94, 95, 96, and 99 in which simply Referenten and associates also write in the first person singular, although the letter bears the letterhead of the Reich Minister of Justice, and they sign it personally.

Dr. Schilf: Mr. Klemm, in regard to the two guidance letters to Hamburg and Stuttgart, were the judges who pronounced these sentences and who had aroused the disfavor of Thierack supposed to be called to account personally, or were measures supposed to be taken against them?

Defendant Klemm: That was not supposed to be done in any case. It would have been neither in accordance with the intentions of the Ministry nor was it the meaning of such a guidance. The president of the district court of appeals in Hamburg, who was requested at the end of the guidance letter to speak to the judges in the appropriate manner, that was what it says literally in the letter, could handle it directly. As the official superior, he did not use this letter at all; but within the framework of a community of work within the NS lawyers league, that is, on a purely comradeship basis and not as a superior, he spoke about these matters. Even less could the president of the district court of appeals in Stuttgart issue measures to the individual judges personally, or reproach them, because this letter was expressly addressed to him. At the end it says that “you, Mr. president of the district court of appeal should call direct and special attention to these problems.” There is also a circular letter by the Ministry of Justice which is known and which emphasizes again and again that the independence of the judges should not be touched.

Q. But in the Stuttgart case the names of the participating judges were listed. What was the purpose of that?

A. Of the twelve sentences which are mentioned in the Stuttgart letter, nine had been pronounced when different members were sitting in the court. For that very reason the names were listed to show that the issue was not the failure of one individual judge, but that the general jurisdiction of the district court of appeals of Stuttgart in matters of undermining military efficiency was not in accordance with the wishes of the Reich level and the needs of the time.

Q. In that connection the name of the codefendant Cuhorst is mentioned. Did you know at the time the then President Cuhorst?

A. No, his name did not mean anything to me.

Q. Did you know that the then Senate President Cuhorst was also president of the Special Court of Stuttgart; and, were the guidance letters supposed to criticize the jurisdiction of the Special Court at Stuttgart?

A. I did not know the jurisdiction of the Special Court of Stuttgart at all. That the same person was presiding judge of the Special Court and president of the senate of the district court of appeal was not known to me at the time.

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Q. One final question in that context. In the two so-called guidance letters, especially in the one to Stuttgart, mention is made of the fact that an extraordinary objection was supposed to be raised. Do you know anything about whether that was done?

A. The sentences were not sent to the Oberreichsanwalt with a request to raise the extraordinary objection, but with the instruction to examine whether it would be worthwhile to raise an extraordinary objection. In neither of those cases, neither in the guidance letter to Hamburg or to Stuttgart, the problem was the changing of prison sentences to death sentences, but the questions were merely prison terms and whether they should be increased but still remain prison sentences. Thus, the Oberreichsanwalt was not instructed to raise an extraordinary objection. As far as I know, at the time, the Oberreichsanwalt in the cases which were sent to him for examination refused to register an extraordinary objection; and, as far as I know, the minister was satisfied with those results of the examination.

Q. With that we have concluded the question of the Guidance Letters.

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c. Lawyers’ Letter Written by Thierack

EXTRACTS FROM LAWYERS’ LETTER NO. 1 SIGNED BY REICH MINISTER OF JUSTICE THIERACK, 1 OCTOBER 1944

Lawyers’ Letters

Information of the Reich Minister of Justice

Confidential

Number 1, dated 1 October 1944

LAWYERS OF GERMANY

The German people, on the threshold of the sixth year of war, face tremendous war tasks.

The Fuehrer has ordered that all resources of the armed forces and armament industry be used to the utmost in order to master these problems.

In pursuance of these measures dictated by total war, the administration of law will also be curtailed and simplified to a great extent. The further mobilization of German lawyers into the armed forces and armament industry cannot be balanced only by curtailment and simplification. Above all it necessitates the utmost concentration of those elements which will have to carry on with our future administration of justice. Every lawyer who in the future will still be entrusted with his office must always be aware that the administration of German justice has, now more than ever, the direct duty of securing the frontiers and the waging of war, especially in view of the new tasks, which will arise through the increasing totalization of the war. Thus, the German lawyers have become the rear guard of the fighting forces. The complete concentration of all resources which this involves and which is expected especially from the senior members who take the place of their younger colleagues, presupposes unified direction and rigid execution of the work of all lawyers regardless whether they are judges, public prosecutors or attorneys.

In the hour, when our people have entered upon the decisive battle for its right to live, each lawyer must concentrate all his attention solely on this battle for freedom. Everything that does not directly serve this battle must now be put aside and everything that serves this struggle must be done with the least possible expenditure of time and work and in the simplest fashion. When the life of our people is at stake, all other individual interests must be pushed aside. For some time now there has no longer been any room for petty quarrels. Things which yesterday had some importance are perhaps quite unimportant today. Legal affairs not immediately connected with the war, must also be dealt with in the shortest and most economical way. The only aim of judges, public prosecutors, and lawyers is to preserve the life of our people.

The lawyer who is very often the first to deal with troubles and needs of his fellow countrymen is today entrusted with a particularly responsible task. Affairs which are not absolutely important in waging war, he must keep away from the law courts; however, legal cases of importance in respect to the war are to be dealt with quickly but not less conscientiously as the need of the hour demands. This task cannot be accomplished with good intentions only. Above all he must be thoroughly acquainted with the various plans and intentions of the administration of justice in the various branches of law.

I know that the lawyers are waiting for such a reorganization of their work and that such a regulation of the administration of justice will be welcomed especially by the conscientious members. Therefore, I have decided to introduce in these fateful hours, at a time of total war, a new chapter in our administration of justice by publishing the Lawyers’ Letters which are to supplement the Judges’ Letters, published two years ago.

These Lawyers’ Letters serve a double purpose. They are to inform lawyers of the aims of the administration of justice by means of publication of the verdicts of law courts in various branches of law, which are of importance in conducting the war, and they are to demonstrate the policy of the court in order to save unnecessary work in regard to remonstrances, complaints, or legal remedies of all kinds, for which there is no longer any room today. On the other hand they are to regulate the general relations of lawyers toward each other in their own profession, and also toward the judges and public prosecutors in order to develop close collaboration among all administrators of justice, and thus avoid future friction, complaints, or quarrels on this subject as far as possible in order to mobilize all forces for the actual legal work. The harder the times and the more stringent the restrictions, the closer cooperation should be among all administrators of justice in their common task.

Therefore, the Lawyers’ Letters, just as Judges’ Letters are to be a close link between the administrators of justice and its personnel; and thus, judges, public prosecutors, and lawyers are to be more closely connected by a general reorganization of their work. These are not orders, but signposts to help master the great tasks which lie ahead of us.

I expect that no German lawyer fails to recognize the seriousness of the hour and the magnitude of the task. I expect the complete mobilization of all resources for tasks that war puts before us, including our people’s struggle for freedom. I know that we shall win this battle, if we work together and fight like one man.

With this in mind, I hope these Lawyers’ Letters are a means of unifying and strengthening the fighting spirit of German lawyers.

The letters are not to remain mere words but should take shape in actions!

[Signed] Dr. Thierack

Berlin, 1 October 1944

Conduct of Lawyers in Penal Cases

1. The defense counsel selected by a citizen of the Protectorate who was sentenced to 12 years’ penal servitude and 10 years’ loss of civil rights directed a letter to his client in the penitentiary, wherein he held out the prospect of obtaining a mitigation of the sentence by means of a request for clemency. Among other things the letter states:

“Today I have a personal request. Of your own accord, you offered to recommend me to other well known Czech families, in which some members met with a similar fate. You also informed your wife of this offer at the last discussion we had together with her. Therefore, I wrote to Prague, but received the answer several times that likely clients needing defense counsel are not known. Had I been acquainted with this fact, I would have asked you during our many conferences to give me the addresses * * *.

“During the proceedings I was able to prove by many documents, that you are not at all hostile toward Germany but definitely pro-German. I also believe that you will find the right attitude toward the new Greater Germany after this difficult experience and wish you the best for the future.

“With the kindest regards and Heil Hitler!

“yours,

“signature”

2. An attorney defended a woman, who together with her sister was accused of keeping contact with prisoners of war which was forbidden. Both women were accused of having received French prisoners of war in their home, of having entertained them and exchanged caresses with them.

Among other things the defense counsel said in his final statement:

“We too, would be glad if kindness were shown to our German prisoners of war in foreign countries, and we do not consider those foreigners, who are kind to our German prisoners, liable to punishment.”

3. Several Czech businessmen had to vindicate themselves before a Special Court because of offenses against the penal order for protecting the rationing of consumer goods (receiving butter they were not entitled to). Their counsel said in his final plea,

“I feel impressed by these defendants who like true German men and good family fathers shouldered a responsibility which was really one for their wives.”

In order to show the pro-German attitude of a defendant, the defense counsel read parts of a speech which one of the defendants made on some occasion with regard to the aims of national socialism. He interrupted the reading and cried, “I could almost believe I hear my Fuehrer speak.”

4. A factory owner had obtained a great deal of food for the canteen of his factory from the black market and had used part of it for himself. Therefore, he was sentenced to 2½ years of penal servitude for violating regulations for war economy. In his plea the defense counsel pointed to the fact that the food was of benefit to the workers, and thus also armament and the armed forces. He finished his speech with the words—“And now, then, condemn the defendant!”

In answer to the reproach of the presiding judge he declared that he could formulate his plea in other words and demanded the acquittal of the defendant.

5. Counsel took charge of the defense of a woman shopkeeper, who had in several cases sold new bicycle tires and high tension batteries to customers without purchase certificates in exchange for butter, meat, sausage, and bacon. She was sentenced to 2 years’ imprisonment and a fine of 1,000 reichsmarks because of continued offenses against the penal order protecting the rationing of consumer goods and the prohibition of bartering.

The defense counsel said in his final speech:

“The defendant is not to be blamed for getting additional food in an illegal way. She is very corpulent and therefore surely needs more than other people. One need only look at that body to see that it needs a considerable amount of food. The food is insufficient even for normal persons. Reich Minister of Health Dr. Conti himself declared, that the food rations are not sufficient.”

The lawyer has repeatedly given cause for measures of controlling him because of his professional conduct. To date, 16 statements of objection and disapproval have been made against him because of insulting expressions to the court, to colleagues and parties, and because of charging of inadmissible special fees, etc.

6. A mother and her daughter were indicted by a Special Court because of offenses against paragraph 4 of the decree dealing with people violating the national emergency orders. The daughter as the head clerk of a firm had stolen a large number of food ration coupons and clothing cards and had given them to her mother. The latter loosened the coupons from the paper and kept them for future use. The food bought with those tickets was often served at their home parties.

In his final speech the defense counsel expressed himself somewhat in the following manner:

“The indicted daughter was the brain of the firm. The rooms expanded, the house expanded. According to that quotation it is but natural that the daughter has given parties and invited guests. The mother is a busy modest housewife, and both are ladies of good family. The fact that the mother loosened the coupons so neatly and guarded them so carefully shows her to be a good and orderly housewife, who proved her orderliness even in this work.”

The defense counsel came to the conclusion, that both women had earned the sympathy of the court and a reward for having confessed. Neither defendant, he finally said, did wrong; there is no criminal guilt.

7. A basket maker who was defended by a counsel was sentenced to 3 weeks’ imprisonment and 14 days’ detention for resistance against the police and for insulting and gross misconduct. In a drunken state he had tried to cross a train track at a point where it was forbidden to cross and was offensive toward railway officials who tried to prevent him from doing so. In town he had molested pedestrians and resisted arrest by the police. The court had sentenced him to imprisonment because the defendant had previously been punished at 4 different times for attacking superiors, and because prior to that he was sentenced to imprisonment for absence without leave while in the army.

His defense counsel petitioned for clemency, asking that the prison sentence be changed into a fine, and in so doing he pointed out that the defendant, who makes deliveries with his own team would be badly affected economically by the prison term; that he was released from the army because of imbecility and that, therefore, his offense was not so bad. He lodged a complaint against the refusal of the public prosecutor and in his argument he said, among other things, the following:

“The case was taken much too tragically. Under prevailing circumstances incidents which were punished with minor fines in peacetime are now often looked upon as capital offenses. This is due to the general nervousness by which the courts are undoubtedly influenced. However, this is only temporary just as the immense number of private charges. There is a lack of humor, preventing us to see these things at their true value.”

8. A woman was charged with insulting another woman. She had called out to the other woman who had shortly before lost one of her sons at the front: “They shot one of your boys, we hope they shoot the others, too.”

In his appeal the defense counsel said:

“Without intending to minimize the heinousness of her words, as they are stated in the indictment, the question of whether the expression is an insult must be examined. The expression contains—so it goes on to state—a malediction, a curse, and is certainly wounding to the feelings of a relative, particularly of a mother, very gravely, but thereby it does not amount to defamation. It is not an expression slighting a person, and therefore it is not an insult.”

The defense counsel adhered to this contention in his final speech although the president had pointed out to him that his standpoint about the punishable nature of the expression was not tenable.

When the insulted mother was questioned as a witness during the proceedings, she started to cry when the president asked her about her son, and took out two pictures of her son in uniform and showed them to the judge; whereupon the defense counsel declared that she was obviously hysterical. After being sharply rebuked by the president, the defense counsel answered in the same sharp way that he quite understood the grief of the woman, but he doubted the credibility of her words. The word “over-excited” was also used.

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Opinion of the Reich Minister of Justice

The problematic nature of the position of the attorney at law which rests upon the premise that the lawyer acts, on the one hand, on principle as the representative of an individual citizen who appoints and remunerates him, on the other hand, as an agent of administration of justice and lawyer of the community which has assigned him to and entrusts him with his function, has long been especially apparent in criminal jurisdiction. The evolution of civil right from the purely “private right” of the past—when the individual pursued his right more or less for his own sake—to the civic right of our time in which the citizen also administers his “private rights” as trustee of the community has indeed also changed and reformed the task and position of the lawyer. This modification did not, however, become so obvious because in their widest sense the pursuit of justice and the administration of justice in the domain of civil right still command, at least outwardly and notwithstanding the sway of the community’s influence, a form which does not make the dual position of the lawyer with its inward conflict of duties so conspicuously prominent as has always been the case in the domain of criminal jurisdiction. A penal suit according to our present idea of penal law is no longer a matter of two parties contending for their rights. Here, it is not a “private citizen,” threatened in his freedom, who disputes against a “juridical person” called the State opposed to him on a level of equality or against the State attorney before an independent judge for the rectification of a claim raised against him by the State, but a citizen who vindicates his conduct before the community and its leadership to which he owes loyalty and consideration, against the suspicion of breach of loyalty or of contempt. Here it is not rights of freedom which are fought for but social obligations which are assessed. Here it is not mere compliance with the law that is examined; it is the honest collaboration, the loyalty, and the worthiness or unworthiness of the personality of the individual citizen which are weighed and determined for the community. Here it is not so much a matter of the rights of the community with regard to the individual as they have been given it by the voice of the citizen, but rather that the individual has as many rights and obligations as the community has conferred and imposed upon him.

It is evident that such a viewpoint must involve far-reaching effects on the position and task of the lawyer as the criminal defense counsel, even if outwardly criminal procedure does not essentially differ in its form from the former criminal trial. As defense counsel, the lawyer has shifted closer to the State and community. He is incorporated into the community of the administrators of justice and has lost his former position as unilateral representative of the interests of the defendant. Whoever is not ready to accept this clearly and absolutely and is not prepared and able consistently to act accordingly ought not to don the robe of a German lawyer nor take a place at the defense counsel’s bench. Not only would he be at disagreement with himself, not only would he fall from one conflict into another, but he would also though often unconsciously do harm rather than service to the administration of justice and last but not least also compromise the reputation of those of his colleagues who think and act differently. It is obvious that as defense counsel the lawyer has found it so much more difficult than the judge and the public prosecutor to achieve this mental change. However, this must never convey the delusion that merely the thorough and successful striving to acquire this professional frame of mind and a thorough devotion to this professional aspiration clears the way to the fulfillment of the difficult as well as responsible and gratifying office of defense counsel. What the issues involved in the individual sphere by this altered role of the criminal defense counsel are, will often be discussed in these Judges’ Letters in the future. The fact remains, at all events, that the qualification of the lawyer as criminal defense counsel, for which the bar has now been fighting for over 10 years with varying success, will ultimately depend upon whether and to what extent it succeeds in its attempt to attain this new role not only ostensibly but also in a really moral sense and to unite nonetheless, this enhanced position of obligations towards the community with the obligations towards the individual citizens in such a way that the community gets its right while the individual citizen who entrusts himself to a lawyer is not abandoned or perhaps even betrayed.

That this struggle of the bar is to this day by no means ended is daily shown anew by incidents of professional routine, apart from the cases mentioned.

I know full well that many lawyers shrink before this struggle for their new adjustment which calls at the same time for an honest pledge, because they deem it to be disloyal to their clients and therefore keep aloof from penal cases.

My appeal is not meant for them. For whoever shuns moral obligations or does not have the strength to see the fight through could never indeed perform useful work as a criminal defense counsel.

However, the motives which have formerly induced and are still inducing many others to shun criminal cases are very diverse. There is no question here of those lawyers who from inclination or calling handle civil cases only, and who in this and other spheres as lawyers in economic cases, for instance, mostly in an exclusively advising and managing capacity perform the most valuable legal work without this ever becoming known to the courts or the public. Of these I do not wish to make criminal counsel for it would be entirely amiss to take them away from their important tasks and give them another one for which they feel no moral calling. Aside from this there is, however, quite a number of lawyers who decline to work on a criminal case because they generally consider criminal cases of secondary order because they are “less juristic.” One ought not to put questions of hierarchy of this sort between criminal law and civil law at all. The opinion that criminal jurisdiction and thereby also counsel for criminal cases are of secondary importance—which is occasionally expressed even today—can only be upheld by someone who interprets the concept “juristic” by abstract constructions and logic reasoning thus trying to maintain a concept “juristic” which has long been given up in civil law also.

Whoever realizes that law is of vast significance to the life of the community, conscious of the problem facing a lawyer in the serving of his nation and its ways of life, recognizing the high ethical value of such legal work, and measuring the importance of each individual case for the community, will not underestimate the defense of the life and freedom of a fellow citizen in a criminal case; but rather consider it more vital and important than the contesting of property rights or other legal questions which perhaps are of secondary concern to the community. And whoever has come to realize that a serious and responsible defense cannot be conducted nowadays, with the knowledge of a few sections of the penal code or even with rhetoric swing and an elegant appearance, but that in addition to this a profound knowledge of modern criminal law and the entire legal sphere is essential not to overlook criminal biology in its widest sense to which belongs above all an extensive understanding of politics, and intuition will agree that, nowadays, the defense counsel in his own “juridical value” does not occupy a secondary rank any more than the judge or prosecutor. On the contrary the best lawyers are barely good enough to be defense counsels or judges particularly when taking into consideration the vital importance of criminal law in wartime. Just as I fill the judges’ seats only with the best today—the same principle applies to civilian law as far as the judges in the divorce courts are concerned who similarly decide the fate of human beings—so only the best lawyers should be admitted as defense counsel.

The measures required for the mobilization of all forces for total war which must lead to further curtailment in the administration of justice will automatically cause some lawyers, hitherto engaged on civil cases only, now and again to occupy themselves with criminal cases, insofar as personnel shortage necessitates this. For these lawyers, more than for their colleagues (who up till now have been for the greater part, or exclusively working on penal cases), it is necessary that they approach their new work from the very beginning with a clear inner attitude and professional conscience which will also give them the necessary assurance in their appearance and work which is a primary asset for successful legal work.

They need not fear to be called upon to do legal work of a secondary nature. He who takes the job of a defense counsel in penal cases of importance to the war, also contributes to the war effort. This means today, however, that he is expected to make a considerable war effort. In cases where the State permits the use of defense counsel, it does not want to see court statisticians but sincere and responsible fighters of the law who seek justice side by side with the judge and the prosecutor. Penal cases have always demanded particularly exacting work, due to the fact that the long sessions involve both physical and mental strain, and require in every case a higher personal effort than the most difficult civil cases, in which the main work can be completed in the office and at the desk.

One of the main objections raised today by lawyers, and by no means by the worst ones, concerning taking the job of defense counsel which can only be approached with complete frankness can be found in results of the guidance of practicing law. The defense counsel, they say, only seldom has the opportunity to succeed, in getting through his deviating opinion due to the close collaboration of judge and prosecutor, for instance, in the introduction of evidence, or to find sufficient attention in his final plea so that sometimes it may appear that the verdict has already been pronounced prior to the main proceedings. The lawyer’s success in any case is often rather minor, and the lawyer very easily attains a secondary position compared to the judge and the prosecutor.

This contains both truth and untruth.

He who is seeking “success” as defense counsel in penal cases must first ascertain what is understood by it. It should go without saying that a conscientious lawyer does not only see success where he manages to reduce the sentence proposed by the prosecutor, to find loopholes in the law for his client following the old tradition, or where he otherwise succeeds in exploiting the case to his client’s advantage. He who only has this conception of the entire affair, not only misunderstands the tasks of a defense counsel, and not only lives in penal conceptions of the past which have been overcome by the introduction of paragraph 2 of the Reich Penal Code and by the law itself, but he also lowers the value of his own work. The success of a defense must already be apparent in the consciousness of having done everything possible as a coresponsible lawyer in order to lead justice to a successful conclusion.

More than that the defendant could not demand and if he did—which is humanly understandable since he cannot be arbiter on his own behalf—then the defense counsel should not support him.

As far as the secondary position compared to that of the judge and the prosecutor is concerned which might be feared by quite a few, I can only answer: Everyone achieves a rank in his life and profession which he works and fights for through his accomplishments and personality. The duty of a defense counsel is not limited to his activity in the main proceedings as many believe. His chief task begins much earlier while cooperating at the elucidation of the state of the case, the production of evidence to be introduced in court, and numerous interviews prior to the trial.

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The defense counsel as a result of his dual position as a defense counsel of one person on the one hand and as an administrator of justice for a community on the other hand will repeatedly face the danger of the fact that the accused whom he is defending depends upon him, making him forget that he is not the mouthpiece of his client but an independent administrator of justice. If, for instance, a defense counsel submits applications only upon request of the defendant, or if he proposes the hearing of character witnesses though he himself does not doubt the credibility of the hitherto heard witnesses, if he adds more lengthy letters of the defendant to his brief as appendices only to comply with the defendant’s wish, this indicates either a lack of the required self-criticism or of the necessary energy toward his client in carrying out his office as defense counsel.

*******

The cases mentioned in this first Lawyers’ Letters, some of which have led to reprimands and disciplinary measures are only a small part of the vast material at my disposal. They really speak for themselves. At the same time they show how much work remains to be done, if we are to solve the tasks which the increased totalizing of war puts to us. If we succeeded in releasing only part of the manpower—represented by lawyers at present engaged in examinations and court of honor proceedings—for really important and war essential legal work, a considerable contribution would have been made. To attain this is not only the goal of the judicial administration. Lawyers themselves should collaborate in this with self-discipline, which I particularly expect from now on.

If there are any difficulties, doubts, wishes, and troubles, every lawyer may report these to me either himself or through his chamber so that these questions may be discussed and cleared as far as possible in these Lawyers’ Letters.

As for the cases reported to me this is briefly to be said:

(1) The letter of the defense counsel to a traitor in a penitentiary speaks for itself. Not only is the unconcealed wooing of clients repulsive, but especially the inconceivable lack of dignity and the servility with which this German lawyer addresses a declared marked enemy of the state, calling him “Dear Sir,” wishing him “all the best for the future,” and after mentioning “his esteemed wife” closes with “best regards and Heil Hitler, yours.”

Surely it cannot be expressed more clearly that one is unqualified for the legal profession.

(2) The lawyer, whose plea was that “we would be glad if our German prisoners of war would be shown a kindness” shows a total lack of understanding of the seriousness and significance of this offense. It is not the business of German women “to show kindness” to prisoners of war, but they should behave as German women. Decency and honor should bar the least contact with prisoners of war who are still our enemies. What should women who have resisted the temptation to which the defendant fell say if they hear a lawyer express such views?

(3) As for the defense counsel, who was “impressed” by the attitude of the Czech industrialists who had bought butter without ration tickets because the defendants “like real German men they took the blame for their wives who were really responsible,” all that can be said is that he knows very little about the tasks of a German lawyer. Here again the lack of tact and understanding was not that he tried to minimize the offense. He obviously knows nothing about the situation of ethnic Germans in the Protectorate and about the interests of the German people. To mention a speech by one of the Czech defendants in one breath with a speech by the Fuehrer was—no matter how it was meant—outrageous. Such a thing cannot be excused as an “awkward mistake.” Lack of instinct is a feature of one’s character.

(4) The lawyer who pleaded for a factory owner, accused of an offense against wartime economy, was it is true right in pointing out that the defendant also thought of his workers when he acquired food illegally. As far as this was a fact he even had to point it out. But in disregarding the fact, that the defendant as the sentence of 2½ years penal servitude shows bought considerably for his own benefit, he has violated his duty as defense counsel. Furthermore, in trying to influence and mislead the court by saying “and now condemn the accused” thus demanding the acquittal of the defendant, he went far beyond the limits of a possible and legitimate defense. This suggestion had to give everybody and not least the defendant, too—to whom he should have explained his offense—the impression that the sentence was unfair and as such contrary to the interest of the people. This type of plea does not serve, but damage the administration of law.

(5) The next two cases also show that some defense counsel have not yet, in the fifth year of war, recognized the importance of criminal proceedings to war economy. To excuse black market activities with the obesity of the accused can scarcely have been meant seriously and can, of course, not meet with success—except for the bad impression counsel makes. This again cannot excuse the temporary lapse, because counsel has, by saying incorrectly and tactlessly later on that the Reich health leader himself describes the food rations as insufficient, revealed that he himself disagrees with our laws and government. The 16 objections and reprimands brought up against him so far confirm the picture, which he has given of himself in this case.

(6) To defend parties and dinners given by the two “better class women” with the help of stolen ration cards by saying that business, so to speak, required such parties is just as stupid as it is to expect the court to find the defendants not guilty of an offense. Such statements not only show considerable lack of understanding of the importance of criminal cases in the field of the law of war economy, but they should never be made at all in a court of law.

(7) Humor should certainly not be suppressed especially in difficult times, but only where it is appropriate. But it is inconceivable for a defense counsel to reproach a court or the prosecution for their lack of humor, because a defendant who indulges in a drunken brawl annoys people and resists the police received a well earned punishment. The defense counsel would have done better to consider that in the fifth year of war one should not burden judges and prosecutors with uncalled for petitions for mercy and complaints; about the latter there is still much to be said. He would have done better to make it clear to his client who had already repeatedly made himself unfavorably conspicuous, how to conduct himself in these times instead of backing him up by his false statements.

(8) If in this case the defense counsel raises legal doubts against the assumption of an insult to the mother, he can thus only intend to obtain an acquittal. Therefore as a representative of the law he takes the view that in such cases according to our law there is no protection of the honor of soldiers killed in action and their relatives. This attitude and his subsequent conduct at the trial, in which he called the gravely afflicted mother of the dead soldier “hysterical and highly strung,” when facing the judge she naturally re-experienced her pain and sorrow, revealed, even had the mother been very excited, a rare absence of any feeling for the community and human compassion. He who tries to cover such a criminal deed, particularly as a representative of the law, puts himself ideologically on a level with the defendant.

*******

d. The Withholding of Criminal Proceedings against Persons Participating in “Lynch Justice” against allied Fliers

DECREE OF HIMMLER TO ALL HIGHER SS AND POLICE LEADERS, 10 AUGUST 1943, CONCERNING “CONTROVERSIES BETWEEN GERMAN CITIZENS AND PARACHUTED ENGLISH AND AMERICAN TERROR FLIERS”

Personal Staff

Diary Nr. 48/16/42 g

Bra/Bn

To: All Higher SS and Police Leaders

[Stamp]

By order of the Reich Leader SS I am sending you enclosed a decree with the request to bring it to the attention of all commanders of the police and Security Police who are to inform orally all their subordinate agencies of its contents.

In addition, the Reich Leader SS requests that the competent Gauleiter be orally informed of this decree.

[Signed] Brandt

SS Obersturmbannfuehrer

1 Enclosure

Der Reich Leader SS

Rf/Bn

48/16/42 g

[Stamp]

Field Command Post, 10 August 1943

Secret

It is not the task of the police to interfere in controversies between German citizens and parachuted English and American terror fliers.

[Signed] H. Himmler

VARIOUS MEMORANDUMS FROM THE FILES OF THE HIGH COMMAND OF THE ARMED FORCES, 6 JUNE–5 JULY 1944, CONCERNING THE TREATMENT OF “TERROR FLIERS”

1. Memorandum of General Warlimont, 6 June 1944[296]

Matter for Chiefs!—(only through officers)

Deputy Chief of the Operations Staff of the Armed Forces,

No. 771793/44 Top Secret Chief matter

Field Headquarters, 6 June 1944

Top Secret

3 copies—1st copy

Subject: Treatment of enemy terrorist airmen

Notes on a report

1. In the afternoon of 6 June, SS Obergruppenfuehrer Kaltenbrunner[297] informed the Deputy Chief of the Operations Staff of the Armed Forces, in Klessheim, that this question had been discussed a short time previously between the Reich Marshal, the Reich Minister for Foreign Affairs, and the Reich Leader SS. In the course of this conference, and in opposition to the original suggestion of the Reich Minister for Foreign Affairs, who wanted to include any kind of terror attack against our own civilian population—thus bomb attacks on cities too—an agreement was reached, according to which only machine-gun attacks directly aimed at the civilian population and its property, should be considered as constituting criminal acts in this sense. Lynch justice should be considered as being the rule. Sentencing by court martial and transfer to the police, on the contrary, had not been discussed.

2. The Deputy Chief of Armed Forces Operations Staff set forth—

a. In pursuance of the broad outlines sketched by Reich Minister Dr. Goebbels and various press reports which point in the same direction the main task now consists in making public a case of this kind which has been unexceptionally confirmed stating the name and the unit of the concerned airman, the place where it happened, and other details in order to establish accordingly the seriousness of the German intentions in the face of incredulous enemy propaganda, and above all in order to achieve the desired deterrent from further assassinations of our own civilian population. Accordingly, the question is to be put whether such a case is in the files of the SD, or whether the necessary facts are at hand in order to fabricate such a case with the necessary details.

Obergruppenfuehrer Kaltenbrunner answered both questions in the negative.

b. Deputy Chief Operations Staff of Armed Forces points out that besides lynch justice the procedure too of a segregation of any such enemy airmen who are suspected of having committed criminal acts of this nature, their admission into the airmen reception camp Oberursel, and upon confirmation of suspicion their transfer to the SD for special treatment should be prepared.

In this connection, the Operations Staff of the Armed Forces is in contact with the High Command of the Air Force, in order to establish the directives with which, in such cases, the commander of Oberursel camp would have to comply.

SS Obergruppenfuehrer Kaltenbrunner declares that he agrees absolutely with his suggestion and with the taking over of the segregated individuals by the SD.

c. Concerning the publicity question, an agreement is reached that until further notice an agreement between High Command of the Armed Forces/Operations Staff of the Armed Forces, High Command of the Air Force, and the Reich Leader SS should be arrived at in any case in order to establish the form of publication.

The cooperation of the Foreign Office is to be secured through the Operations Staff of the Armed Forces.

3. In the course of a conference with Colonel von Brauchitsch (of the High Command of the Air Force) held on 6 June, it was established that the following acts are to be considered as terrorist acts justifying lynching:

a. Low level machine-gun attacks on civilian population, on single individuals as well as on gatherings;

b. Attacks on own (German) airplane crews dropping by parachute;

c. Machine-gun attacks on passenger trains of the regular public service;

d. Machine-gun attacks on hospitals, field hospitals, and hospital trains clearly marked with the Red Cross sign.

The facts listed under 3 are to be communicated to the commander of the airmen reception camp at Oberursel. If any such facts are proved by interrogation, the prisoners are to be delivered to the SD.

Colonel von Brauchitsch said that another report about these matters to the Reich Marshal was not necessary.

[Signed] Warlimont

Distribution:

Chief High Command Armed Forces copy 1

through Chief Operations Staff Armed Forces

Deputy Chief Operations Staff Armed Forces

Ktb. copy 2

Qu. (draft) copy 3

*******

2. Letter from Field Marshal Keitel to the German Foreign Office, 14 June 1944

Fuehrer Headquarters, 14 June 1944

Top Secret

The Chief of the High Command of the Armed Forces

Operations Staff Armed Forces/Qu. (Adm. 1)

Nr. 771793/44 top secret Chief matter

To the Foreign Office,

c/o Ambassador Ritter[298]

Salzburg

In connection with home and foreign press reports concerning the treatment of terrorist airmen who are falling into the hands of the population an unambiguous fixation is needed of the concept of what facts constitute a criminal act in this sense. At the same time the procedure should be established as to the publication of such cases which have led either to a lynching by the population or—in case of apprehension of terrorist airmen by armed forces or police—to a special treatment by the SD.

In agreement with the Commander in Chief of the Air Force [Goering], I intend to write the communication a draft of which is attached which should be an instruction to the commander of the airmen reception camp at Oberursel. It concerns such cases in which, according to an investigation made in this camp, it is found suitable to segregate the culprit, owing to confirmation of suspicion, and to transfer him to the SD.

Previous to any publicity in the press, by radio, etc., it must be insured that name, unit, place of crime, and other detailed circumstances present a perfectly clear picture which publication may effect the intended result of deterring from further murders. In this connection, the formulating of publication should make allowance for the circumstance that enemy protests of all kinds are to be expected. Therefore, and in agreement with the chief of the Security Police and the SD and with the director of censorship, it is intended that prior to any publication and until further notice an agreement is to be reached between the High Command of the Air Force, the Operations Staff of the Armed Forces, the Foreign Office, and the SD, in order to settle facts, date and form of publication.

You are requested to confirm, if possible not later than 18th instant, that you agree with the above principles as well as with the procedure intended for publications.

1 enclosure

3. Letter from Goering’s Office to Keitel, 19 June 1944

The Reich Marshal of Greater Germany

Adjutant’s Office

Adj. Off. No. 7605/44 secret

Command matter

Headquarters, June 19th, 1944

Subject: Treatment of enemy terrorist airmen

Reference: Your letter No. 771793/44 top secret chief matter II, Ang. Operations Staff Armed Forces/Qu. (Admin. 1) of June 15th, 1944

2 copies—copy No. 1

To the Chief of the High Command of the Armed Forces,

Field Marshal Keitel

The Reich Marshal [Goering] has noted with reference to the above-mentioned letter:

“The reactions on the side of the population are not in our hands anyhow. However, it should be prevented as far as possible that the population takes steps against other enemy airmen to which above facts do not apply. In my opinion, above-mentioned facts always can be dealt with by a tribunal, as in this case acts of murder are concerned, which the enemy has prohibited his airmen from committing.”

Acting:

[Signed] Teske

Lieutenant Colonel, GSC

4. Draft Letter from the German Foreign Office to Field Marshal Keitel, 20 June 1944

Ambassador Ritter No. 444

Carbon Copy

[Handwritten] Draft

To the Chief of the High Command of the Armed Forces

Your letter of 15 June 1944

No. Operations Staff Armed Forces/Qu. No. 772991/44.....II.ed.

Subject: Treatment of enemy terrorist airmen.

The Foreign Office agrees to the intended measures as a whole, notwithstanding the clearly palpable objections from the viewpoint of foreign policy and international law.

Examination in detail should differentiate between cases of lynching and cases of special treatment by the SD.

I. In cases of lynching, a sharply defined establishment of criminal facts according to paragraphs 2–4 of the letter of June is not very important. First, a German authority is not directly responsible; death has already taken place before some German authority deals with the matter. Further, the circumstances will be such, as a rule, that it will not be difficult to represent the case in a suitable manner on publication. Accordingly, in cases of lynching, the principal aim will be to deal suitably with the individual case on publication.

[Handwritten marginal note] only this was the aim of our letter.

II. The procedure suggested for special treatment by the SD[299] with subsequent publication, would only be defensible if Germany would openly repudiate at the same time, and in this connection, the obligations under international law which are in force now and which Germany still recognizes. When an enemy airman has been apprehended by the armed forces or by the police and been transferred to the airmen reception camp Oberursel, his legal status has become eo ipso that of a prisoner of war. Concerning the criminal prosecution and sentencing of prisoners of war and the carrying-out of death sentences against prisoners of war, definite rules have been established by the Prisoners-of-War Convention of 27 July 1929, such as, e.g., article 66, which provides that a death sentence may be carried out no sooner than 3 months after notification of the death sentence to the protecting power; in article 63: sentencing of a prisoner of war only by the same courts and according to the same procedure as applicable to members of the German Armed Forces. These regulations are so precisely worded that it would be hopeless to try to veil any infraction thereof by a clever form of publication of individual cases. On the other hand, the Foreign Office cannot recommend a formal renunciation of the prisoner of war convention on this occasion.

[Handwritten marginal note] this is already being prevented by the intended segregation.

[Handwritten marginal note] No—owing to segregation and the special treatment immediately following.

A way of escape would be the following, viz, that suspect enemy airmen should not be allowed at all to have the legal status of prisoner of war; that means that one should tell them immediately on capture, that they were not to be considered as prisoners of war but as criminals, that they be handed over, not to authorities competent for prisoners of war such as a prisoner of war camp, but to the authorities competent for the prosecution of criminal acts, and that they then be sentenced in special summary judicial proceedings. If, during the interrogation under these proceedings, the circumstances prove that this special procedure is not applicable to the case on hand, then in individual cases the concerned airmen could afterwards be given the legal status of prisoners of war, by transfer to the airmen reception camp at Oberursel. Of course, even this opening would not prevent Germany from being blamed for infractions against valid agreements, and perhaps not even the taking of reprisal measures against German prisoners of war. Anyway, such an opening would enable us to keep to a clear viewpoint and free us of the necessity of either openly repudiating valid agreements or of making use, on publication of every single case, of excuses which nobody will believe. Of the facts mentioned under 2–4 of the letter of 13 June, the facts mentioned under 1 and 4 are legally unobjectionable. The facts under 2 and 3 are legally not unobjectionable. However, the Foreign Office is prepared to disregard that.

[Handwritten marginal note] yes, this too is possible.

It would perhaps be advisable to summarize the facts under 1, 3, and 4 by saying that any attack of an airman on civilian population committed with machine guns is to be treated as a criminal act. The individual acts listed under 1, 3, and 4 would then merely form particularly remarkable instances. Nor does the Foreign Office see any reason why such attacks should not be punished, when committed upon civilian population in ordinary dwellings, in motor cars, in river vessels, etc.

The Foreign Office proceeds from the fact that German airmen are, as a general rule, forbidden, when attacking England, to make use of machine guns against the civilian population. As far as the Foreign Office is informed, such a prohibition was issued some time ago by the Commander in Chief of the Air Force. A general publication could point out the fact that such a prohibition is in force.

III. The above considerations warrant the general conclusion that the cases of lynching ought to be stressed in the course of this action. If the action is carried out to such an extent that its purpose, viz, the deterring of enemy airmen, is actually achieved which the Foreign Office approves of, then the machine gun attacks of enemy airmen upon the civilian population ought to be given publicity in quite another manner than has been the practice up to now, if not in home propaganda, then at any rate in foreign propaganda. The competent local German authorities, probably the police stations, should be instructed to send at once, in every case of such an attack, a short and true report mentioning details concerning place, time, number of killed and wounded, to a central office in Berlin. This central office ought then to transmit these reports at once to the Foreign Office for use.

As such machine gun attacks on the civilian population also have taken place in other countries, e.g., in France, Belgium, Croatia, Rumania, the competent German offices or the governments of those countries ought to be asked to collect in the same way news about attacks on the civilian population and to make propagandistic use of these in foreign countries in cooperation with the German authorities.

IV. In the letter of 15 June the intention has been mentioned that any publication should, until further notice, be proceeded by an agreement, i.e., with the Foreign Office. The Foreign Office attaches special importance to this and insists also that such an agreement take place not only until further notice, but during the entire duration of the action.

By order

[typed and crossed out] Signed: Ritter

5. Notes of General Warlimont, 30 June 1944

Operations Staff of Armed Forces

No. 006988/44 secret command matter

30 June 1944

Top Secret

3 copies—copy No. 1

Subject: Treatment of enemy terrorist airmen

[Pencil note] We must, at least, act. What more do we need?

Notes on a Report

I. Enclosed draft of a reply letter of the Reich Minister of Foreign Affairs to the Chief of the High Command of the Armed Forces, which has been transmitted to the Operations Staff of the Armed Forces through Ambassador Ritter, is submitted.

On 29 of this month Ambassador Ritter states by phone, that the Reich Minister for Foreign Affairs has approved this draft but has instructed Minister Sonnleitner to report to the Fuehrer the point of view of the Foreign Office prior to the sending of the letter to the Chief of the High Command of the Armed Forces. Only if the Fuehrer approves of the principles established by the Foreign Office, is the letter to be sent to the Chief of the High Command of the Armed Forces.

II. The Reich Marshal agrees with the formulation transmitted from the High Command of the Armed Forces concerning the concept of terrorist airmen and with the proposed procedure.

[Signed] Warlimont

Distribution:

Chief High Command Armed Forces
through Deputy Chief Operations Staff Armed Forces, copy No. 1
Ktb. (files), copy No. 2
Qu. (adm. 1) copy No. 3

6. Notes of General Warlimont’s Office, 5 July 1944

Operations Staff Armed Forces

Qu. (Adm. 1)

5 July 1944

Top Secret

Notes

Concerning “Terrorist Airmen”

In the noon situation conference of 4 July, the Fuehrer decreed as follows:

According to press reports, the Anglo-Americans intend for the future, as a reprisal action against “V 1,” to attack from the air also small places without any economic or military importance. If this information is true, the Fuehrer desires publication through radio and press that any enemy airman who participates in such an attack and is shot down during it cannot claim to be treated as a prisoner of war, but will be killed as soon as he falls into German hands. This measure is to apply to all attacks on smaller places, which are not military, communications, nor armament objectives, etc., and which accordingly have no significance from the point of view of the war.

For the time being, no measures are to be taken, but only to be discussed between the armed forces and the Foreign Office.

SECRET CIRCULAR FROM MARTIN BORMANN TO NAZI PARTY LEADERS, 30 MAY 1944, CONCERNING “PEOPLE’S JUSTICE AGAINST ANGLO-AMERICAN MURDERERS”

German National Socialist Workers’ Party

Party Chancellery

The Chief of the Party Chancellery

Fuehrer’s Headquarters, 30 May 1944

[Stamp] 9 June 1944

[Stamp] Secret

[Initial] Th [Thierack]

Circular 125/44 Secret

(not for publication)

Subject: People’s justice against Anglo-American murderers

During the past weeks English and North American fliers have repeatedly been strafing children playing on playgrounds, women and children working in the fields, ploughing peasants, vehicles on the highway, trains, etc., from a low height, thus murdering in the most despicable manner defenseless civilians—especially women and children.

It has happened several times that members of the crew of such aircraft who had bailed out or made a forced landing, were lynched on the spot by the highly indignant population immediately after their arrest.

No police or criminal proceedings have been taken against citizens who have taken part herein.

[typed] [signed] M. Bormann

Distribution: Reichsleiter

Gauleiter

Verbaendefuehrer

Kreisleiter[300]

Certified [Signed] Friedrichs

30 May 1944

To all Gauleiter and Kreisleiter!

[Initial] Th [Thierack]

Subject: Circular 125/44 Secret

The Chief of the Party Chancellery requests that the Kreisleiter inform the Ortsgruppenleiter only verbally of the contents of this circular.

[typed] signed Friedrichs[301]

Certified [Signature illegible]

LETTER FROM LAMMERS TO REICH MINISTER OF JUSTICE THIERACK, 4 JUNE 1944, CONCERNING “PEOPLE’S JUSTICE AGAINST ANGLO-AMERICAN MURDERERS,” AND ENCLOSING BORMANN’S CIRCULAR TO NAZI PARTY LEADERS ON THIS SUBJECT

The Reich Minister and Chief of the Reich Chancellery

Reich Chancellery 681 E secret

[Stamp] Secret

[Stamp] at present at Field Headquarters

To the Reich Minister of Justice, Dr. Thierack

Subject: People’s justice against Anglo-American murderers

[Initial] Kl [Klemm]

[Handwritten note] Department IV. Circular Decree with the addition that such cases are to be submitted to me, when they arise, for an examination of the question of quashing proceedings.

[Initial] Th [Thierack]

Dear Dr. Thierack,

The Chief of the Party Chancellery informed me about his secret circular letter,[302] a copy of which is enclosed, and requested me to inform you as well. I herewith comply with this and beg you to consider how far you want to inform the Courts and the prosecuting authorities of it. The Reich Leader SS and Chief of the German Police has, as I was further told by Reichsleiter Bormann, so instructed his police leaders.

Heil Hitler!

Yours very devoted

[Signed] Dr. Lammers

EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS HANS HAGEMANN[303]

DIRECT EXAMINATION

Dr. Schilf (counsel for defendant Klemm): What was the last position you held in the administration of justice?

*******

Witness Hagemann: I was attorney general [Generalstaatsanwalt] at Duesseldorf.

Q. Since when had you been attorney general at Duesseldorf?

A. Since 1937.

Q. Herr Hagemann, can you remember that in 1944, the Reich Minister of Justice, Thierack, had issued a so-called circular directive[304] to all attorneys general which contained an instruction to the effect that in cases where the German population had exercised lynch justice the prosecution had been instructed to report to the Ministry about such cases?

A. Yes, I remember such a decree.

Q. Can you tell the Tribunal what the text was?

A. No, I cannot tell you that. I can tell you the contents and what it said was that in such cases a report had to be made to the Minister.

Q. Did that decree say anything to the effect that the Minister intended to quash all such cases?

A. I don’t remember that passage, but it is possible that it did contain such a passage. Generally speaking, all I remember is the fact that a report had to be made on such cases, and if such a case had been pending with me I would have had a look at the decree, and I would have read it through. However, as no such case ever occurred with me, I don’t exactly remember the text because it never became topical for me.

Q. Witness, would you kindly make a little longer pause after I finish my question?

A. Yes, I will.

Q. Was that circular decree a so-called secret decree?

A. Yes, it was.

Q. And how did you keep it? Where did you keep it?

A. Secret decrees were entered in the register by my senior clerk who was in charge of the registry. After that, they were put in the safe.

Q. Witness, in your district—that is to say, within the area of the court of appeals of Duesseldorf—in the fall of 1944, a case is supposed to have occurred where an SA leader shot down two or three Canadian fliers who had been taken prisoners.

A. Yes, I remember that case perfectly well.

Q. Would you please give the Tribunal an account of that case?

A. In September of 1944 parachutists made an attack near Arnhem. In the course of that attack some paratroopers drifted away, and came down near the border between Holland and Germany. There, two Canadian soldiers were taken prisoner, and an SA leader shot and killed them. That is the general outline of the case. I did not hear it from the Chief Public Prosecutor at Cleve who had taken charge of the case, but I heard it from a judge at the court of appeals who informed me of the matter. Thereupon, I told the Chief Public Prosecutor in Duesseldorf to investigate the matter and immediately make a report to me. He returned; I ordered some additional investigations, and I myself made investigations, too. I interrogated witnesses, for example. I believe the best thing would be for me to tell the Tribunal what the results of all those investigations were.

The two Canadian soldiers had been taken prisoner close to the frontier. Two customs officials took them back. The Canadian soldiers were unarmed and, as I think is the custom with prisoners of war, they held up their hands as they walked along. The two customs officials took them back like that, until they got to Kranenburg, a little place on the German-Dutch frontier. At Kranenburg that SA leader was standing in the street—his name was Kluettgen; next to him stood the Kreisleiter of Cleve, whose name was Hartmann. When Kluettgen saw those two prisoners coming along he told them to halt; he drew his pistol from his pocket and shot at the two Canadian soldiers. Kluettgen was so cold-blooded that when at first his revolver was jammed he put it right, and then shot those two soldiers down. As I found out later, at that time or soon after, he said, “Now I have got two; I now only need another two or three.” I can’t vouch for the latter figure, I don’t know exactly what he meant. However when he said, “Now I need another two or three,” he meant this: In an air raid, I believe, Kluettgen had lost five close relatives, and it became evident that that killing was just vengeance for his relatives whom he had lost in that air raid. That is to say, if I may put it that way, he acted in a modification of the old saying “An eye for an eye and a tooth for a tooth.” He just changed it and made the “eye for eye” into “number for number.”

That clarified the SA Leader Kluettgen’s position, but the part played by the Kreisleiter who had been standing next to Kluettgen, remained unclear. I believe I can remember that the Kreisleiter had said something that wasn’t quite above-board, something like, “That’s right,” or “just do away with them,” or something like that. However, it was possible to interpret the words in various ways. It is just possible that he had meant to say, “Kluettgen should shoot them,” or “Take those two away,” because somebody said afterwards that after those two people had been killed, the Kreisleiter had said that that was not what he had intended to happen.

That was the outcome of the investigations.

Now, as to the proceedings that were instituted.

The Chief Public Prosecutor had ordered the police to arrest Kluettgen, but the police refused to carry out the order. Later on, when I was interned, I heard from a Gestapo official that there had been general instructions issued to the police to the effect that men from the Ortsgruppenleiter upward were to be arrested and proceedings instituted against them only if the Party Chancellery approved, and similar instructions had been issued for people in the SA and the SS. Generally speaking, I did not encounter any difficulties when making investigations. The SA gave its consent for me to interrogate several people. The Kreisleiter, however, refused to make a statement until we obtained the approval, and it was the Party Chancellery which had to give that approval; that is to say, it was Bormann. Although an application was made for such consent, it never arrived.

I made a report to the Ministry about the case. Naturally, I had to make a report because it was an important case, and reports had to be made to the Ministry about all important cases.

I told the Ministry, over the telephone, about the fact that proceedings had been instituted, and I believe it was Dr. Mettgenberg to whom I spoke over the telephone. I told him as much as I knew at that time. Afterwards I made a written report, that I intended to clear up the matter, and I eventually managed to clear it up. I also told the Ministry that I needed its support in order to obtain permission for the Kreisleiter to make a statement.

The Ministry was altogether in agreement with the way I had handled the case. I received written instructions. I understood them to want me to clear up the case completely.

There was no question of quashing the proceedings. Not one word was said of that.

Presiding Judge Brand: One moment please, Witness. Tell us, please, what did you mean by clearing up the case? Did you mean prosecute and convict? Or what did you mean?

Witness Hagemann: What I meant first, was to establish the facts and once they were established to suggest to the Ministry that an indictment should be filed against Kluettgen and, if necessary, also against the Kreisleiter. I could not make a final suggestion at that stage because I did not yet know what part the Kreisleiter had played. That is to say, the Ministry agreed that I should carry out my plan to clear up the case, but because no approval was received from the Party Chancellery to interrogate the Kreisleiter, we could not close the proceedings.

There were, of course, also great difficulties of transportation. The further the war was brought into the country, the more difficult it was to have any correspondence with Berlin.

Q. What was the date of this case?

A. I am afraid I cannot tell you the exact date. I think one should be able to find out from the history of the war. It was that parachute attack near Arnhem. I think I am pretty certain it was in September. May I say that is the way I remember the case now. The files are in existence.

Q. It was in 1944?

A. Yes, 1944. I did something which, as far as I know, I never did in any other case. I had two copies made of that file, one original file and a copy of it. I gave the original to my senior clerk, and I told him to keep it, not to leave it in the courthouse at night but to take it home with him, and to take it with him to the air-raid shelter in case of an alert. I kept the duplicate myself, and whenever the alert came I took it with me to the air-raid shelter to make sure that if anything happened to either my senior clerk or to myself, one file would always be available, so that there should be no difficulty in prosecuting the case. I was convinced that this was an important case not only from the point of view of guilt and expiation in the individual concrete case, but also that was bound to be of importance for the German armed forces, for, although I was not a soldier, I could well imagine that if the Allied forces should come to hear that the German administration of justice had not prosecuted that case, they would take retaliation measures against German soldiers, or at least might do so. In that event, soldiers who were innocent in this connection might have suffered for what Kluettgen, and possibly also the Kreisleiter Hartmann, had done.

What may be of interest, is the reaction of the German population in Kranenburg. There were some German civilians standing in the street when this happened, who quite openly showed their indignation.

Q. Was any indictment filed against the one who actually did the shooting?

A. No, that was not done, because we had to wait. The role the Kreisleiter played—

Q. Please answer this question. Did you have any difficulty with the securing of the evidence concerning the actual shooting? As you have told us you apparently had plenty of evidence as to that one person.

A. Yes, against this one man I had the evidence, but as it was possible that another man was involved—the Kreisleiter—it was important that we should not just indict one man and deal with him alone, but to indict them together. We always did that in principle.

Q. Well, let me ask you this. Was that a matter of German law, that when you knew one man had committed a crime you didn’t prosecute him because perhaps someone else might have helped him?

A. But we did intend to indict him. We only wanted to await the result of the investigations concerning the other person, so that we could indict them both, because if we only indicted one, the proceedings against the other one would have been confronted with a great many difficulties. That was the way in which we proceeded, I should say, almost regularly.

Presiding Judge Brand: Very interesting.

Dr. Schilf: Herr Hagemann, I would like to ask one more question. The President has asked you whether you were confronted with any difficulties in prosecuting one person. I am referring to Kluettgen now.

Witness Hagemann: Yes.

Q. May I ask you to tell us whether you had an opportunity to talk to Kluettgen yourself, or to interrogate him?

A. I asked the legal adviser of the SA, if possible, to make Kluettgen come to see me. At first, Kluettgen had worked near Kranenburg, but afterwards the SA had sent him to the district of Aix-la-Chapelle [Aachen]. He had some special transport mission there, and when he came to Duesseldorf on one of those transportation errands, he came to see me in my apartment one Saturday evening. I was ill; that is why I was at home. I had a short talk with him, and I was not favorably impressed with him. He told me that he had killed those two Canadians because he had been afraid that foreign civilian workers who were loafing around in that district might have set those Canadians free. I wanted to refute that statement, and I did refute it by the testimony obtained from witnesses. However, that motive would have been quite indifferent for the legal evaluation of the case.

As regards the clearing up of the case, it seemed important to me to convict the man and prove to him that that motive could not have been true.

Q. Witness, you have said that the order from the Chief Public Prosecutor at Duesseldorf to the police, to arrest Kluettgen, had not been complied with, and now you say Kluettgen came to see you. Did you, as attorney general, not have the possibility to arrest Kluettgen immediately?

A. No, I did not have that possibility. It was a Saturday evening, I was alone in my apartment, and I had no weapons.

Q. You said that Kluettgen had been transferred to the Aix-la-Chapelle district, and you said that the agency for which Kluettgen worked had done that. In carrying out your investigations, did you find any indications that that was done intentionally in order to remove Kluettgen from your jurisdiction?

A. I did not find indications, and I certainly did not find any proof, but the possibility exists. However, it is also quite possible that Kluettgen was transferred from the Kranenburg district because the population was excited.

Q. Could you just tell the Tribunal approximately when the Allied troops arrived in Duesseldorf or Aix-la-Chapelle, the district where Kluettgen was staying at the time.

A. Yes. I can’t tell you exactly when the Allied troops arrived in Aix-la-Chapelle, but they arrived in Oberkassel, on the left bank of the Rhine, at the beginning of March, and as far as I remember, they got to Duesseldorf in April.

Q. Up to that time proceedings were continued, were they?

A. Yes.

Q. And later on, after you had received the support from the Ministry, no instructions to the contrary were issued to you?

A. No contrary instructions were issued to me. The matter was concluded. All that was missing was an interrogation of the Kreisleiter.

Q. And, in accordance with your suggestion, they would then have been indicted?

A. Well, I couldn’t make a suggestion because I didn’t really know what was the matter with Hartmann yet, but if I had found out, I would then have suggested the indictment of Kluettgen and possibly of the Kreisleiter too. However, as far as the Kreisleiter was concerned, that depended upon those investigations which had not yet been made.

Q. I suppose these facts which you have described to the Tribunal can be gathered from the files which you have mentioned?

A. Yes.

Q. May I ask you when you saw the files for the last time?

A. In the spring of this year.

Q. What has been done with the files?

A. I gave them to the attorney general, Dr. Junker, in Duesseldorf in person.

Q. And presumably they are still there?

A. Yes, I am quite sure they must be.

Presiding Judge Brand: I would like to ask a question. The case was pending for investigation from September 1944 until March 1945? Is that what you meant to say?

Witness Hagemann: Yes.

Presiding Judge Brand: Thank you.

Dr. Schilf: Mr. Hagemann, did you ever hear—

Presiding Judge Brand: Just a moment. One question.

Judge Harding: What else did the Ministry do about it?

Witness Hagemann: Well, naturally I don’t know what steps the Ministry took, but I assume that the Ministry tried to get the Party Chancellery to give its consent for the Kreisleiter to be interrogated; again and again I suggested to the Ministry to take such a step.

Q. But you heard nothing further from the Ministry, is that right?

A. No, no, I heard no more later on, because—well, I don’t really know why they didn’t write again. I have already told you that transportation difficulties were great, and that it became more and more difficult to keep in touch by letter or by telegram. For example, since the middle of March—or anyway I think it must have been since the middle of March—we were still in a sort of cauldron, we in Duesseldorf were cut off on all sides from the outside world.

Presiding Judge Brand: In March 1945?

Witness Hagemann: Excuse me. What is it you mean? What happened in March 1945? You mean it was then that Duesseldorf became a cauldron? You mean it was then that we became cut off in Duesseldorf?

Q. Yes.

A. Yes, I think it must have been in March 1945, but naturally the difficulties had been great before that time, I mean the transportation difficulties, and they grew worse and worse.

Dr. Schilf: Mr. Hagemann, did you ever hear that that man Kluettgen was recently sentenced to death by an American Military Tribunal?[305]

Witness Hagemann: Yes, Dr. Haensel told me that a few days ago. He told me that he had read in the paper that Kluettgen had been sentenced to death in Dachau by an American Military Tribunal.

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CROSS-EXAMINATION

Mr. LaFollette: After you communicated with Dr. Mettgenberg about your trouble with the case, did you ever get an answer back from him?

Witness Hagemann: You’re now referring to the first case, are you? You’re referring to the Kluettgen case, are you?

Q. Yes, I’m referring to the Kluettgen case.

A. Yes, I talked to him over the telephone and then I received an order from the Ministry to the effect that they agreed with my plan to clear up the matter and that in particular the Kreisleiter was to be interrogated. I was also instructed that I should make a further report and that probably further directives would be issued to me. Naturally, I had to wait for the instructions from the Minister. Whether it was Dr. Mettgenberg who had signed that order or whether it was Dr. Vollmer who was then ministerial director, I naturally can’t tell you, for of course I was interested in the case as such but not in the man who signed it.

Q. And before you could do any more, you had to wait for instructions from the Ministry in all cases where Allied fliers had been shot; is that right?

A. Well, that is the way I remember that circular decree but that is the only case that occurred in my area, and the instructions were to the effect to clear up the matter.

Dr. Schilf: I have no further questions.

Presiding Judge Brand: The witness is excused.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[306]

DIRECT EXAMINATION

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Dr. Schilf (counsel for defendant Klemm): We now come to the next charge of the indictment. You are personally made responsible in the indictment for having assisted in the so-called lynch justice on the part of the German population exercised on bailed-out Allied fliers during the war. May it please the Tribunal, the documents which were introduced against the witness in that connection are NG-364, Prosecution Exhibit 108; 635-PS, Prosecution Exhibit 109; and NG-149, Prosecution Exhibit 110.[307] According to Exhibit 108 which we already discussed a few days ago, Bormann had sent a secret letter from the Fuehrer Headquarters to the Nazi Party which was addressed to Gau and Kreisleiter. He spoke about lynch actions which had already been taken by the people and it says further, and I quote: “no police or criminal proceedings have been taken against citizens who have taken part herein.” He is speaking in the past tense. Exhibit 109 shows correspondence between Lammers and Thierack. Lammers informs Thierack about this circular letter sent out by Bormann. First, I want to ask you, in what relationship did you see these statements of Bormann to the Kreisleiter and Gauleiter to Thierack at the time?

Defendant Klemm: According to the text of Lammers’ letter, Exhibit 109, there must have been an enclosure in this letter.

Q. At the time[308] did you obtain knowledge of Exhibit 109 and the enclosure, as you call it, Exhibit 108?

A. Yes, I saw Lammers’ letter and I must have seen this circular letter of Bormann’s together with it.

Q. Bormann spoke about three of those cases which had occurred in the past. Bormann stated that penal prosecution did not take place. When you saw these two letters—when these Exhibits 108 and 109 were submitted to you—did you know anything about it, that is that in the past the administration of justice, that is the courts abstained from penal prosecution against members of the German population?

A. I consider that that is absolutely impossible. If penal prosecution would have been abstained from, this could have been done only by quashing the trial, and for such a quashing Hitler was competent exclusively or the Minister of Justice to the extent to which this right had been delegated to him by Hitler. This can be seen from the clemency regulations which have already been introduced as a document here, in part. I cannot remember such a case being discussed, and I cannot find anything in these reports about it either. I looked at them with that in mind.

Q. If you say that at the time when you received this letter you did not know any past cases, how should one understand Bormann’s letter? He is speaking of the past and says that penal prosecutions did not take place.

A. This can only be explained as follows: According to the letter, before it was sent out, such cases must have occurred. Himmler had already in 1943 instructed his police not to interfere in disputes between the German population and terror fliers which had been shot down.[309] This was already brought out in the IMT trial. This sentence which Bormann used in his circular letter can be explained in my opinion only as follows, namely: that the police did not forward denunciations to the administration of justice and that in this way a penal prosecution did not take place, but only because the administration of justice did not hear anything about these matters. From the hint that Lammers gives in this letter that Himmler had already informed his police also on the basis of Bormann’s circular letter, it is quite clear to me that such denunciations to the administration of justice were also not to be made in the future. But, of course it could happen that the administration of justice found out about such cases on its own and took them up, but incidentally, that Hitler backed this action himself is in my opinion shown in Exhibit 110.

Q. Mr. Klemm, Exhibit 108 and 109 bear your initials. I now want to ask you, were these statements submitted to you before they were submitted to Thierack or after that?

A. I received these documents after Thierack had seen them and after he had already made his notation on them.

Q. This notation by Thierack reads as follows: “IV R-V with the addition that such cases for the purpose of examination in regard to quashing shall be submitted to me,” that is “to me” Thierack, that is Thierack’s notation. What do you have to say about that? How did you understand that notation?

A. The prosecution submitted this document with a supplementary sheet and this says, at least in the German edition of the document, handwritten note on the right upper corner, signed “Klemm.” That is not right. There isn’t any handwritten notice in the upper right hand corner at all but merely a “Kl,” my initials. Below the initials, that is, about the upper one third of the page, there is the notation which has just been quoted which was written by Thierack. The handwritten note is without doubt in Thierack’s handwriting. If the original were available and not merely a photostat, one would be able to see that this note was written with a green pencil. That was the color in which ministers had to sign, according to the business regulations for the highest Reich authorities. Whereas in a purple pencil only my initials are on this document.

Every one of the defendants here, if he has been in the ministry, would be able to testify whether that was my handwriting or not.

Presiding Judge Brand: What is the exhibit number on that again?

Dr. Schilf: Exhibit 109, Your Honor, 109; 635-PS. But may I remark it is a later sheet. The prosecution submitted Exhibit [108 and Exhibit] 109 at two different times in two parts.

Now, Mr. Klemm, I want to ask you—

Defendant Klemm: I want to make an additional explanation. The figure “IV” means department IV. “R-V” means “Rundverfuegung”, circular order, with the addition that such cases are to be submitted to me, that is Thierack, and are to be submitted not for quashing but for the purpose of examining the question of quashing if they were pending. Thus, a quashing was not considered from the very beginning.

Q. Did this instruction issued by Thierack have any possibility of inciting the population to lynch Allied fliers, or how did you look at it at the time?

A. After the Minister had issued this instruction to Department IV and thus had arrogated the decision in regard to this to himself, I no longer had a possibility to undertake anything in the matter. This circular order was issued with the stamp “secret” on it if it was sent out at all, and I don’t know that. And one cannot talk about inciting the population for the reason that the population did not hear about it at all. However, after Bormann had informed the Party in this manner and after Himmler had issued his instructions to the police, it was the duty of Thierack to take some measures in regard to the prosecutions in the country. I have already stated that the administration of justice was unwilling, and Thierack was unwilling too, to grant freedom from prosecution without any conditions like that. Thus, if the administration of justice wanted to carry out a trial, the Minister had to assert his authority and to protect the local prosecutors against any elements of the Party or the police who would like to prevent such a penal prosecution. If a proceeding was to be quashed, however, only the Minister himself could do that, because of the regulations by law. What were the consequences of this circular order in the administration of justice, I can no longer remember. It may be one or two very special cases were quashed. I do not know whether there were more such cases.

Q. You said that the administration of justice and Thierack, too, turned against Bormann’s methods. Can you cite examples for this?

A. The Party did not only require that those people who participated in lynchings should not be punished, but on the contrary, it wanted to have severely punished those people who treated fliers who had been shot down in a humane manner; and they wanted to have them punished with the aid of the regulations regarding the forbidden contact with prisoners of war. We did not concur with either of those measures. In a case which took place in Magdeburg, the Party attempted to achieve the most severe punishment of a couple which had given food to an enemy flier who had been shot down and who had received a piece of candy from him. This was stopped. We had received a report according to which a couple was arrested because they had allowed an Allied flier who had been shot down, into their apartment. The Canadian—I believe he was a Canadian flier—had been taken prisoner during the air raid, that is, before the all clear signal, by a civilian, and the civilian took him into his apartment. In this apartment the flier received something to drink and the Canadian offered the wife a piece of candy. At first the woman refused it. When he offered it the second time, however, she accepted it. She then put the piece of candy away and said, “That is for the children.” The Party had achieved it with the local administration of justice that the married couple was arrested and that an indictment would be filed for illicit contact with prisoners of war in a very serious case. When I heard about this report—I shall shorten this description somewhat—I reported this case very emphatically to Dr. Thierack, and during the very same night he called up the Chief Public Prosecutor in Magdeburg and instructed him to have the married couple released immediately the next morning.

Q. Mr. Klemm, that is sufficient. I shall submit an affidavit about this incident. I only want to ask you now, those were cases in which Germans were prosecuted because they were supposed to have treated Allied prisoners of war too leniently. Can you also cite the opposite cases where the Reich administration of justice prosecuted Germans who participated in lynchings?

A. Around the turn of the year 1944–1945 in Kranenburg that is the district of the district court of appeals, Duesseldorf, the following case occurred. An SA leader had, during the course of the air war, lost three very close relatives of his due to bombing. One noon he passed the town hall in Kranenburg. There was a guard standing, and with him he had two captured paratroopers. This SA leader went over to him and shot the two captured paratroopers. We prosecuted that case and even though the police as well as the Party offices offered considerable resistance, these discussions were advanced energetically. I do not know the final outcome, because later on due to the events of the war this territory was occupied by the Allied troops.

Q. May it please the Tribunal, may I say briefly I have the approval of the Court already to submit these files of the General Public Prosecutor of Duesseldorf. I do not have them here as yet. When I receive them, I shall then submit them in evidence.

Mr. Klemm, briefly in regard to Exhibit 110, which you have already mentioned, “terror fliers,” secret military matter, that is how it is called; and a note. Did you find out anything about that?

A. These are Wehrmacht files and a correspondence with the Foreign Office, and the problem was to not let terror fliers obtain the status of prisoners of war.

Q. Let me interrupt you; you do not have to discuss it. Did you find out about the matter at the time?

A. The administration of justice neither took part in this case nor did we know anything about it.

Q. The prosecution, furthermore, submitted document 1676-PS, Prosecution Exhibit 417.[310] It is an article which appeared in the Voelkischer Beobachter on 28–29 May 1944. The prosecution asserts that from this article of Goebbels’ in the German press, one can read an indictment of the population to administer lynch justice. Did you find out about this article at the time?

A. I did not have knowledge of this article at the time. It was not the cause for Thierack’s circular letter, which was issued for quite different reasons; as I just described, it was issued for legal considerations. Moreover, according to the affidavit in Document NG-1306, Prosecution Exhibit 440, the issuance of this circular letter must have occurred at a time which shows that it could have had no connection with this article in the newspaper.

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CROSS-EXAMINATION

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Mr. LaFollette: * * * Now we will consider the matter of the Allied fliers. That document is Exhibit 108 and 109.[311] NG-364, Prosecution Exhibit 108 was the circular letter from Bormann dated 8 June [30 May] 1944, and Exhibit 109 is Document 635-PS. You testified yesterday—I mean Friday morning—that the notation by Thierack was on Exhibit 108 [Exhibit 109] reading, “IV circular with the addition that such cases are to be submitted to me when they arrive for an examination of the question in quashing.” That was on there when the document reached you. We are in agreement on that, are we not?

A. It was an instruction to Division IV to draft such a circular decree with these contents for the purpose of examining whether the case should be quashed.

Q. Yes. Now then, you also said, “From the hint that Lammers gives in this letter—that is Exhibit 109—that Himmler had already informed his police also on the basis of Bormann’s circular letter, it is quite clear to me that such denunciations to the administration of justice were also not to be made in the future but of course it could happen that the administration of justice found out about these on its own and took them up, but incidentally Hitler backed that action itself.” Do you recall, did you do anything after 4 June 1944 when you received this notation from Thierack about this subject of quashing sentences or did you let the matter drop?

A. I was not able to do anything, since the minister had ordered that this circular decree would be drafted and these cases had to be reported too, because according to the circular letter by Bormann to the Party and according to the information by Lammers that Hitler had instructed the police, the public prosecution had to get into difficulties if it found out about such a case, and if it started an investigation.

Q. Did you personally take any steps to see that there would be no prosecutions against anyone who followed Bormann’s instructions?

A. I know for sure, and I have already described, that we did carry out a proceeding against the party and the police. We continued investigations, and furthermore, I testified that I cannot recall with certainty any more whether, on the other hand, one or two cases in which there was a special situation was quashed. I cannot recall that any more with certainty.

Q. But you yourself gave no instructions to prosecutors on this line because that was Thierack’s order, wasn’t that right?

A. Yes, that was Thierack’s order that the public prosecutors were supposed to report on these matters; after they had reported, the Minister had to decide whether the investigation and the case were to be continued or whether the proceedings should be quashed. This means that the instructions for the purpose of examination were for the purpose of examining whether the proceedings should be quashed.

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