What Keitel denies, however, is that he knew—or that prior to the Nuremberg Trial he knew—that on arrival in the Reich the persons involved were imprisoned by the Police and then transferred to concentration camps. This was contrary to the meaning and purpose of the decree. The Defendant Keitel could not know of this because in cases which did not involve proceedings by a military court, the competency of the Armed Forces only extended to turning over the persons concerned through the competent military court officials to the Police to be transferred to Germany and there turned over to the Administration of Justice. The Defendant Keitel is unable to say from his own knowledge why so many persons were brought into concentration camps and there subjected to the treatment known as “Night and Fog,” as described by witnesses who have appeared here. The evidence presented to this Tribunal must lead to the conclusion that all political suspects who, as a result of political measures, were removed from the occupied territories to Germany for detention in concentration camps were without the knowledge of the military authorities designated “NN” prisoners by the Police, for according to the testimonies we have heard the majority of persons in “NN” camps had not been formally sentenced by military courts in occupied territories for transfer to Germany.
It is evident therefore that Police authorities in the occupied territories made use of this decree as a universal and unrestricted carte blanche for deportations, exceeding every conceivable limit and disregarding the exclusive rights exercised by the military authorities and the rules of procedure imposed upon them.
Such a state of affairs in the occupied territories without the knowledge of the Armed Forces authorities can only be explained by the fact that as a result of the appointment of Higher SS and Police leaders the military commanders of the occupied territories no longer had executive powers in Police affairs and that these Higher SS and Police leaders received their orders from the Reichsführer SS.
The Reichsführer SS and the Higher SS and Police leaders were never authorized by the OKW to apply this decree, which was intended as a police executive measure to be used only by the Armed Forces. The decree affected only those offices of the Armed Forces exercising judicial authority; and it is clear from the wording that it was restricted to these and drafted to apply to them.
The German Armistice Commission’s letter of 10 August 1944 (Document 843-PS) proves that the OKW really had no knowledge of this improper application of the decree of 7 December 1941. It says there:
“... that the basis for arrests seems to have undergone a change, since in the early stages they were only made in individual cases of attacks on the Reich or the occupation forces; in other words, those elements were apprehended who had played an active part in definite cases”—and who were liable to punishment under those articles of the Hague Convention which refer to land warfare—“whereas at present ... numerous persons are also being deported to Germany who, on account of their anti-German sentiments, are being removed from France as a precautionary measure ...”
Paragraph 4 of that letter contains the following passage:
“The above-mentioned decree is based on the condition that the persons arrested will be made the subject of judicial proceedings. There is reason to believe that on account of the number of cases—especially those coming within the scope of precautionary measures—such proceedings are now frequently dispensed with and prisoners are no longer confined in the detention or penal institutions of the German legal authorities, but in concentration camps. In this respect, too, there has been a considerable change as compared with the original provisions of the decree ...”
The OKW’s reply of 2 September 1944, which is signed by Dr. Lehmann, refers expressly to the directives of the Führer decree of 7 December 1941, the so-called Night and Fog Decree. It contains no statement to the effect that the original conditions for deportation to Germany were changed by the OKW.
This reply, however, was sent from Berlin without the knowledge of the Defendant Keitel; and the Armistice Commission’s letter was obviously also sent to Berlin, where the legal department of the Armed Forces was situated. Keitel himself was at the Führer’s headquarters and did not hear of the correspondence.