Dr. Kubuschok (defense counsel for defendant Schlegelberger): To what extent did you participate in the legislative work and the execution of the Night and Fog Decree, the Nacht und Nebel Erlass?
Defendant Schlegelberger: First, I must make a temporal limitation here. The Tribunal knows that on 20 August 1942 I left the Ministry of Justice. Thus, in regard to my person, only the previous period can be considered. During that time the procedure, as well as taking prisoners into custody, remained exclusively in the hands of the Ministry of Justice.
If I am supposed to make some statements about the decree, I would like to emphasize that the jurisdiction of the Ministry did not refer to the western territories, which are under consideration here. This was entirely under the competence of the military commanders. Hitler had issued the order to Keitel that in the future merely in very clear cases, and in such cases where the death sentence could be expected with certainty, the military courts were to pass sentences. The rest of the culprits were, for the purpose of a deterrent by the police, to be transported to Germany to remain under the custody of the police, and—and this is the expression he used—to disappear during night and fog.
The chief of the legal division of the Wehrmacht, Dr. Lehmann, realized what the situation was, and after unsuccessful attempts with Keitel and with Hitler he tried to have it avoided that the prisoners be left in the custody of the police by having them tried before the ordinary courts. He called on Freisler. Freisler did not disagree with Lehmann, and basically asked for my agreement. I gave my approval.
Here, too, I had to make a serious decision. On the one hand, the fate of the prisoners was concerned. If they were in police custody, their fate could not be controlled. On the other hand, there was the necessity to loosen certain regulations which formed definite components of our legal system.
The Fuehrer order was based on the fundamental idea that the deterring force, through the cutting off of the prisoners from every contact with the outside world, could be achieved in this manner. If we now wanted—and this is the decisive question—to have the direction of the prisoners, if we wanted to avoid having the prisoners remain in police custody and thus not carry out Hitler’s decree but break its head, no other recourse was left to us but to conduct our court proceedings under the point of view of secrecy, since otherwise Hitler would immediately have forbidden and actually prevented the fact that ordinary courts should handle these matters.
However, in order to avoid any doubt, I want to emphasize expressly in the following that I have to state we are concerned only with regulations governing proceedings. The NN prisoners were supposed, and were, to be tried materially according to the same regulations which would have applied to them by the courts martial in the occupied territories. The rules of procedure had been curtailed to the utmost extent. In German law we also know of the possibility, because of the endangering of the security of the State, that the public is excluded when the opinion on which the sentence is based is pronounced. We now had to take one more step, to issue an order to make available the possibility that the pronouncing of the sentence itself would not be made in public. One could not avoid the recognition that otherwise the secrecy would not be maintained, and I have to repeat, the cases would have been taken out of our hands immediately.
Everything else was based on this. For example, the limitation in the selection of defense counsel. Germany had a very eminent legal profession, and in my opinion it was a matter of course that every lawyer fulfilled the oath of secrecy given to him by law. However, one had to realize that as with every other profession, the lawyer’s profession too, during such times, was permeated with bearers of the resistance idea, and therefore, here too, a certain caution was needed and it was necessary to limit the selection of defense counsel.
It is well known that in the executive order which I signed—and it was the same as the draft submitted in the document book[464]—that I limited the use of foreign evidence. However, if one thinks the matter through correctly and thinks of the practical application, one will realize that this limitation worked only in favor of the defendants because numerous acquittals occurred according to the principle, that governs other law as well as ours, in dubio pro reo. In accordance with this basic attitude, it was decisive, under all circumstances, to avoid the subsequent transfer of the NN prisoners to the police.
Presiding Judge Brand: We will recess until 1:30 this afternoon.