Without reading this affidavit, but offering it in its entirety, I merely wish to invite the Court's attention to the conditions described by this former prison warden of the nature of proposition that was made to those convicts concerning their offering themselves for these experiments with poison gas. It will be noted that they would take convicts under sentence of death, tell than that their appeals for clemency had been refused and that their execution was imminent. They were then, and only then, offered a chance to regain freedom if they subjected themselves be experiments that would not necessarily result in their death. If they survived, they would be given freedom; but if they refused to undergo such experiments, they would have to be executed.
The Prosecution offers as Exhibit 297, document NG-405.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: On page 45 of the English book, which is page 37 of the German, is found NG-330. This is a one-page memorandum bearing the stamp of the Ministry and dated 5 March 1943, addressed to the attorney General in Vienna. It is signed by Vollmer and initialed by Westphahl. In it Vollmer states, in his capacity as head of Division IV of the Ministry of Justice, that he does not consider it necessary to inform relatives of an executed person in each case of the fact of the execution of the death sentence.
In anticipation of a possible question from the Tribunal, the Prosecution regards this document as relevant because the two signatories to this document, namely Vollmer and Westphahl, were members of Division IV in the Ministry of Justice wherein the defendants Mettgenberg, Von Ammon, and, until 1943, the defendant Joel, also had positions.
The document, we feel, is illustrative of one facet of the work of that Division.
The Prosecution offers as Exhibit 298, document 330.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: On page 46 of the English book, which is 38 in the German, is found NG-303. The first two pages of this document are completely handwritten and are signed , at least initialed, by the defendant Mettgenberg. It bears the handwritten letterhead of the Ministry of Justice, dated 19 July 1944 in Berlin. It is addressed to all chief public prosecutors and general public prosecutors, and is also circulated for the information of the President of the Supreme Court and of the People's Court and of the Courts of Appeal. It concerns itself very succinctly with the decision on the part of the defendant Mettgenberg that after the execution of a condemned person relatives are to be informed of the date thereof but only after tho execution has taken place, and that no death notices shall be published. Of more interest, however, is the fact that the letter goes on to say that no information at all of the fact of an execution of a condemned man is to be given to his relatives or to anybody else if he is not a German national.
This letter of Mettgenberg's is also initialed opposite the title as "Undersecretary" by the defendant Klemm.
The document continues with some typewritten memoranda initialed by Westphahl, in which the defendant Lautz had a discussion, apparently with the defendant Westphahl, concerning this problem of whether or not to inform the relatives of a man who is to be executed.
Lautz finally comes to the conclusion that in the case of German nationals relatives should only be informed afterwards, and then upon inquiry only.
The Prosecution offers as Exhibit 299, document NG-303.
THE PRESIDENT: What are the initials "I.A."?
MR. WOOLEYHAN: They mean "by order of".
THE PRESIDENT: The initials "E.I." on the next page - what is that?
MR. WOOLEYHAN: To what page do you refer, Your Honor?
THE PRESIDENT: Page 47, "E.I. 6/7", whatever that is. Capital "E", small "i".
MR. WOOLEYHAN: Yes, I see that. It apparently -particularly since it bears the date -- is the initial of the person Eikler in the Ministry of Justice.
THE PRESIDENT: I notice the letter "M" up on the top of the page to the right.
MR. WOOLEYHAN: That we have not been able to decipher.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: On page 50 of the English book, which is page 43 of the German, is a lengthy directive issued by the Reich Ministry of Food and Agriculture to all district food offices in the Reich. It is signed, on page 57, which is page 52 in the German, by Dr. Moritz an official in the Food Ministry. It is a directive concerning literally how much the inmates of prisons, concentration camps, and police camps shall be fed. In a number of paragraphs it sets out the ration allotment for each category of prisoners.
Without reading this lengthy directive, but offering it in its entirety, I wish only to invite the Court's attention to the fact that there are distinctions made between various classes of prisoners, and there are very great differences between the amount of food that those various categories arc allowed. In particular, I invite the Court's attention to page 55 in the English book, which is page 50 in the German, wherein in Roman paragraph VII and Roman paragraph VIII, the feeding of Eastern workers and Poles and the feeding of Jews who are incarcerated in these various places of detention is distinctly separated.
The Prosecution offers as Exhibit 300 Document NG 455
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYRAM: On page 58 of the English book, which is page 53 in the German, is found MG 534. Although this document is a sworn affidavit in substance, its form is a little unusual. The form is directly traceable to the fact that this affidavit was secured pursuant to the interviewing of the affiant, Deacon Peter Buchholz In the interest of time, the entire transcript of the interview is reproduced here, and at the same time the person interrogated under oath swore to the contents thereof. The questions which are interpolated throughout this document are the words of the interviewer. The narative and affirmative statements are the words of the affiant, Deacon Buchholz.
The affiant, Deacon Buchholz, was prison chaplain at Pleotzensee prison in Berlin from May 1943 on until the end of the war. Without reading this entire affidavit, although we will offer it in its entirety, we particularly invite the Court's attention to page 59 of the English, which is Page 56 of the German, wherein Chaplain Buchholz describes the continual fettering, day and night of these sentenced to death by special order of the Minister of Justice there in the Ploetzensee. The chaplain also states that it was the Minister of Justice or the Ministry who gave orders to leave prisoners chained in their cells during airraids. When the affiant was asked who he knew in the Ministry of Justice who was directly concerned with these procedures, the affiant state that the only name he knew of was Engert, holder of the golden Party badge, who as we know from the defendant's own affidavit is the defendant Engert.
The Prosecution offers as Exhibit 301 Document NG 534.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: For purpose of the record, the Prosecution wishes at this time to refer back to Exhibit No. 376 and read a brief portion which has not been read before. This document is found in book 4-C at Page 14 of the English and Page 18 of the German.
It is the affidavit of the defendant Engert.
THE PRESIDENT: We do not have that book.
MR. WOOLEYHAN: You will not need it, Your Honor, it is very brief excerpt.
Beginning on Page 18 of the German.--In the division 5 of the Reich Ministry Justice, I as Ministry Director, had the supervision of all executions of sentences in the Germans prisons with the exeption of death sentences. The supervision of the execution of death sentences belonged to Division 4 of the Reich Ministry of Justice. My division was only concerned with the distribution of prisoners into the different prisons and the supervision and security of those prisons. My division was also responsible to insure that a guillotine or, after having introduced the hanging system, an arrangement for hanging, existed and was in good order in prisons which were arranged for the execution of death penalties. However the prison did not receive the orders for the execution by hanging or guillotine from me but from Division 4, which was directly connected with the concerned public prosecutor in the matter.
THE PRESIDENT: What exhibit number was that please?
MR. WOOLEYHAN: Exhibit No. 276, the Engert affidavit.
JUDGE BLAIR: What page? What page in book 4 --Book 4-C?
MR. WOOLEYHAN: Page 14, Your Honor. On page 68 of Book 7-B --I am sorry, I do not have that in the German, but it is the last document.
THE PRESIDENT: What page again please?
MR. WOOLEYHAN: Page 68 in Book 7-B, the last document, is found NG 245. This document is the transcript of a speech -- correction, an article prepared by the Minister of Justice, Dr. Thierack, entitled "The Situation in Regard to the Execution of Sentences in 1944." This article prepared by Dr. Thierack is referred to Goebbels Ministry for Public Enlightenment and Propaganda by a covering letter in which the authorship of the article is made clear.
The covering letter states that the attached Thierack article is a comprehensive review of the execution of sentences throughout the Reich. We merely wish to invite the Court's attention, without reading the document to the fact that this Thierack articles includes a compilation of official Justice Ministry figures regarding the numbers of prison inmates in Reich prisons under Ministry control throughout the Reich, the nationalities of these prisoners, the fact that the bulk of them, whether of foreign extraction or whatever, were engaged in vital heavy armament work, and also figures on the executions of death sentences. The Prosecution offers as Exhibit 302 this Document NG 245.
THE PRESIDENT: The document will be received in evidence.
MR, WOOLEYHAN: At this point, if it please the Court, we depart from the seven series of document books which is new completed, except for the one document now under consideration that was discussed a short while ago. We take up now book 6.
THE PRESIDENT: You didn't offer NG 195, did you, on Page 61?
MR WOOLEYHAN: Your Honor, that occurred previously. It is already in evidence, Your Honor, as Exhibit no 45, and was found in Document Book 1
THE PRESIDENT: The same Exhibit.
MR WOOLEYHAN: The same Exhibit.
MISS ARBUTHNOT: We are going now to present document book 6. The first document in this book, No 1733 PS, which appears on Pages 1 through 3, is the secret keitel directive of December 7 1941, for the prosecution of criminals acts.
THE PRESIDENT: Is so happens I do not have Book, 6
MISS ARBUTHNOT: It was distributed on Saturday morning. There should be -
THE PRESIDENT: It may be in my office, but I do, not have it here. I think we are now within two minutes of the time of our afternoon recess, so we can look it up in the meantime. What others books, if any, will you need besides that one?
MISS ARBUTHNOT: There is only one. There is a possibility that we may need book 5-a, but it is anticipated that Book 6 will take most of the afternoon.
THE PRESIDENT: 7-A and 7-B were put on our desk this morning but not 6, and not 5-A. I haven't got it.
MR. WOOLEYHAN: It has been distributed, Your Honor, and after the recess I think -
THE PRESIDENT: We have 5-A, and we will find No. 6 during the recess. We will recess at this time (A recess was taken).
THE MARSHAL: The Tribunal is again in session.
MISS ARBUTHNOT: For the record it might be well to identify myself as Miss Arbuthnot of the Prosecution. The first document in Document book VI, 1733-PS, is the secret directive of December 7; 1941, for the prosecution of criminal acts against the Reich or the occupation power in occupied territories by citizens of these occupied territories. I should like to read this directive:
"Since the opening of the Russian Campaign, Communist elements and other anti-German circles have increased their assaults against the Reich and the occupation power in the occupied territories. The extent and the danger of these activities necessitate the most severe measures against the malefactors in order to intimidate them. To begin with one should proceed along according to the following directives.
I.
"In case of criminal acts committed by non-German civilians and which are directed against the Reich or the occupation power endangering their safety or striking power, the death penalty is applicable in principle.
II.
"Criminal acts contained in paragraph I will, in principle, be tried in the occupied territories only when it appears probably that death sentences are going to be passed against the offenders, or at least the main offenders, and if the trial and the execution of the death sentence can be carried out without delay. In other cases the offenders, or at least the main offenders, are to be taken to Germany.
III.
"Offenders who are being taken to Germany are subject to court martial procedure there only in case that particular military concerns should require this. German and foreign agencies will declare upon inquiries on such offenders that they were arrested and the state of the proceeding did not allow further informations.
IV.
"The Commanders-in-Chief in the occupied territories and the justiciaries, within their jurisdiction, will be personally held responsible for the execution of this decree.
V.
"The Chief of the OKW will decide in which of the occupied territories this decree shall be applied. He is authorized to furnish explanations, supplements, and to issue directives for its execution. The Reich Minister of Justice will issue directives for the execution within his jurisdiction."
"By order; signed by Keitel."
It might be well to explain that this order, in later documents, will be referred to as Nacht and Nebel Order, or the Night and Fog Order. Document No. 1733-PS is offered into evidence as Exhibit 303.
THE PRESIDENT: No. 303?
MISS ARBUTHNOT: Yes.
THE PRESIDENT: I only have 300; it is 303, you think?
MISS ARBUTHNOT: Yes, sir.
THE PRESIDENT: It will be received in evidences
MISS ARBUTHNOT: The document appearing on pages 4 and 5, of both the English and German, Book VI, 671-PS, is a letter from Keitel to the Ministry of Justice, stating that close cooperation between the Ministry of Justice and the Wehrmacht is necessary in carrying out the Nacht and Nebel Order. This letter was brought to the attention of the defendant Schlegelberger and initialed by him. It will be seen from the letter that the Reich Ministry of Justice is to settle the manner of imprisonment of the Nacht and Nebel prisoners. Document No. 671-PS is offered as Exhibit 304.
DR. BEHLING: (Attorney for Defendant Schlegelberger) May it please the Court, in the photostat which I have before me does not confirm the drawing or initials by the defendant Schlegelberger which the Prosecution mentioned.
The letter with which the document is concerned is a letter from the Chief of the OKW to the Reich Minister of Justice for the attention of Under Secretary Freisler.
On the second page of this document I cannot see the references or the signature of the defendant Schlegelberger. Perhaps the Prosecution can make a further statement on this point, as it was said expressly just now that this letter had been submitted to the defendant Schlegelberger.
MISS ARBUTHNOT: We have here a very bad copy of the photostat of this document. However, it is my understanding that the initials appearing on the upper right-hand corner, very faintly I admit, are the initials of the defendant Schlegelberger, along with a date. Whether they can be deciphered from this photostat is questionable.
DR. BEHLING: The translation did not come through quite clearly, but as far as I understood the Prosecution just now, the date on the second page and Schlegelberger's initials are supposed to be. I cannot recognize that properly here. Therefore, I would like to ask the Tribunal to permit mo to submit the page once again to the defendant Schlegelberger.
DR. BEHLING: May it please the Court, a further examination by the defendant Schlegelberger, has shown that the defendant could not say that those initials were put there by his own hand. In case the Prosecution adheres to its own views, I would ask that an expert on handwriting be heard.
MR. WOOLEYHAN: May it please the Court, if in the Tribunal's opinion, an expert on this signature is necessary, we, of course, will call one, but before that is done we invite the Court's attention to the fact that page five of the document book is a certified translation. In the upper right hand corner appears the letters SCH. The text of that page stated the letter was to be shown to the defendant Schlegelberger. We submit that on its face there is no need for an expert to testify to those initials.
THE PRESIDENT: There is no question about the admissibility of the document. Its application to Schlegelberger might be a matter of further proof. On the face of it, it looks like a prima facie case, that it had been submitted to Schlegelberger. It is open to if he desires to disprove that fact in his own behalf.
DR. BEHLING: I will then give my views on that document in detail when we produce evidence.
THE PRESIDENT: It is permissible.
MISS ARBUTHNOT: The Prosecution would like to be informed whether the Tribunal desires that an expert be called on this document's signature?
THE PRESIDENT: It seems to the Tribunal that there is a prima facie evidence of genuineness, and until something further is shown by the Defense, I think the prima facie is satisfied.
The document will be received in evidence.
It was said that the date appears thereon, and the date is not very clear on this copy.
MISS ARBUTHNOT: The date of the original letter, 12/12/41, and it appears on the second page, page five of the document book -- the figures 26-1, which I presume means January 26.
The next document 660 P S, beginning on page 6 of the bottom of the English and German Books, is a letter dated 12 December 1941. It is signed by Keitel. It notes that prison terms in occupied territories are a sign of weakness, and that Hitler is of the opinion that an effective and lasting deterrent can only be achieved by death sentences, and by measures which will keep the relatives of the culprits and the population in suspense as concerns the fate of the culprit. This purpose is served by deportation to Germany. The attached directive sets forth the conditions under trial will be held in the occupied territories or prisoners transferred to Germany for trial.
Document No. 669 PS is offered as Exhibit No. 305.
DR. BEHLING: May it please the Court, the photostat which I have now before me of this exhibit contains not Keitel's signature, and a number of handwriting notes which in detail are only contained in the document book in fragments. A considerable part of the handwritten notes, which are to be found on page one are not legible for me, nor can I decipher it. I would ask the Prosecution to hand to the Defense the original of the letter of 12 December 1941 so that the necessary clarification and supplement without which a proper evaluation and placing of responsibility on the Minister of Justice cannot be made.
THE PRESIDENT: May I Inquire where the original documents are located?
MISS ARBUTHNOT: I believe it is here in the files, your Honor, in Nurnberg.
THE PRESIDENT: Is there any reason they cannot be furnished to him for examination?
MISS ARBUTHNOT: I do not believe so, your Honor.
JUDGE BRAND: Does the Prosecution claim that this document was initialed by any of the defendants? We have not heard any such claim?
MISS ARBUTHNOT: We have not contended that the document is initi led by any of the defendants here. It is just given as background material, and we have not translated the marginal notes. They were indecipherable to our translators, as far as I know, and we have not used them in any way.
JUDGE BLAIR: Well it bears the date as to when Dr. Schlegelberger was the acting Minister of Justice, does it not?
MISS ARBUTHNOT: December 12, 1941.
MR. WOOLEYHAN: In answer to the Tribunal's question, the date is during the time the defendant Schlegelberger was acting Minister of Justice. However, the Prosecution has not attempted by this particular exhibit to link it with any one of the defendants. It is merely another aid to explain the program now under process of proof; and, therefore, we submit that whatever marginal notations were contained on the document were irrelevant, particularly insofar as they were indecipherable to us.
TRE PRESIDENT: It has been suggested here an the bench since there is nothing that appears in the document, so far as shown, that is identified with any particular defendant; that Counsel might be taking some risk in having those notes deciphered. It might react against him.
MR. WOOLEYHAN: The question goes to the probative vnlue of the document, which I attempted to indicate.
THE PRESIDENT: I think the document is admissible. If the Defense Counsel still wishes to see the original, I think then he should be able to see it. Do you still want to see the document?
DR. BEHLING: I would suggest that you allow me to see the original which might enlighten me on the subject of the marginal notes?
THE PRESIDENT: We will receive the document in evidence, but we will ask the Prosecution to accomodate him, if possible, within a reasonable time, and he can bring the subject up again if it seems important to him.
MISS ARBUTHNOT: Arrangement will be made to furnish the original for clarification.
TRE PRESIDENT: The document will be received in evidence.
MISS ARBUTHNOT: The next document, NG 077, sometimes identified as 665-PS, appearing on pages 13 to 17 of the English book, and 11 to 14 of the German book, contains correspondence and a draft decree concerning the carrying out of the Nacht and Rebel order by the Ministry of Justice. This decree or the draft of the decree reads:
"Regarding the execution of the afore-mentioned order I decree:
"1. I reserve to myself the decision on which court is materially and formally competent to deal with a case.
"2. The public prosecutor shall base his decision for an indictment on his conception of duty.
"3. The order, execution and termination of the imprisonment on remand are at the discretion of the public prosecutor.
"4. The main hearing will be conducted behand closed doors.
"5. The admittance of evidence of foreign origin depends on the preceding consent of the public prosecutor.
"6. Prior to the verdict the public prosecutor may revoke the indictment or move for a temporary stalling of the proceedings. The motion of the public prosecutor to stall proceedings temporarily must be granted by the court.
"The public prosecutor must be given an opportunity to state his attitude, should the Court decide on making an exception to his motion."
Document 077 is offered as Exhibit No. 306.
THE PRESIDENT: The document will be received in evidence.
MISS ARBUTHNOT: Document No. NG-484, appearing on purges 18 and 19 of the English Book, and 15 to 17 of the German Book, is the sworn affidavit of Lt. General Rudolf Lehmann, of the Legal Department of the OKW, concerning the treatment of "Nacht und Nebel" cases. In that affidavit Lt. General Lehmann states, on page 18, near the middle of the page, that: "Freisler said that the Ministry of Justice could handle thess cases and promised to speak with Schlegelberger on the matter. Schlegelberger, who was then acting Minister of Justice was, in my opinion, the only person who could consent to take over these 'Nacht und Nebel' cases by the Ministry of Justice. Lehmann also mentions in his affidavit that defendants Mettgenberg, von Ammon and Joel worked on the "Nacht und Nebel" matters in the Ministry.
THE PRESIDENT: What were those three names again?
MISS ARBUTHNOT: Mettgenberg, von Ammon, and Joel.
Document NG-484 is offered as Exhibit 307.
THE PRESIDENT: The document will be received in evidence.
MISS ARBUTHNOT: Document NG-232, which appears on pages 20 and 21 of the English Book, and pages 18 and 19 of the German Book, is the Ministry of Justice decree dated 6 February 1942, setting out the manner in which these cases are to be handled. I would like to read this decree:
"1. Competent for the handling of the cases transferred to the ordinary courts including their retrial are:
as far as they originate from the occupied French territories, the Special Court and the Chief Prosecutor in Cologne; as far as they originate from the occupied Belgian and Netherland territories, the Special Court and the Chief Prosecutor in Dortmund; as far as they originate from the occupied Norwegian territories, the Special Court and the Chief Prosecutor in Kiel; for the rest, the Special Court and the Attorney General at the District Court, Berlin. In special cases I reserve for myself the decision of competence for each individual case.
"2. The Chief Prosecutor will inform me of the indictment, the intended plea and the sentence as well as of his intention to refrain from any indictment in a specific case.
"3. The choice of a defense counsel will require the agreement of the presiding judge who makes his decision only with the consent of the Prosecutor. The agreement may be withdrawn.
"4. Warrants of arrests will be suspended only with my consent. If such is intended, the Prosecutor will report to me beforehand. He will furthermore ask for my decision before using foreign evidence or before agreeing to it being used by the Tribunal.
"5. Inquiries concerning the accused person or the pending trial from other sources then those Wehrmacht and Police agencies dealing with the case will be answered by merely stating that (black space - John Doe, if you like) is arrested and the state of the trial does not allow further information." This Document NG-232 is offered as Exhibit 308.
THE PRESIDENT: I note that while this appears to emanate from the Reich Ministry of Justice, and from my recollection it seems to be a period during which Schlegelberger was Under Secretary, nevertheless the document is signed Freisler, who is thought to be identified with that document.
MISS ARBUTHNOT: I believe that that will be explained in a later document, in which, if I remember correctly, it shows that Freisler, or rather, it is explained, too, in the Lehmann affidavit which states that Freisler was in the Ministry at that time, and was instrumental in preparing the decrees in connection with the "Nacht und Nebel."
THE PRESIDENT: In other words, Schlegelberger had gone out of office?
MISS ARBUTHNOT: No, he was still in office, sir, as appears in NG-484, which was the Lehmann affidavit.
THE PRESIDENT: Who is responsible for this; whether Schlegelberger is identified with it.
MISS ARBUTHNOT: Schlegelberger is not identified with this particular document, but he was still acting Secretary of the Ministry at that time, as is explained in the Lehmann affidavit which I read a short time ago, on page 18 of your Book.
THE PRESIDENT: Very well.
MR. WOOLEYHAN: Your Honor, at the time this letter under discussion was written, both Freisler and the defendant Schlegelberger were, it appears from dates of documents already in evidence, technically under the titles of Under Secretary. They were both Under Secretaries at that time. But, the defendant Schlegelberger was acting in the capacity of Minister until later in 1942, when Thierack was appointed, and the relation between Freisler and Schlegelberger, in that dual capacity, is explained with regard to "Nacht und Nebel" in the Lehmann affidavit which has already been introduced.
THE PRESIDENT: Very well.
DR. BEHLING (Counsel for the defendant Schlegelberger): May it please the Court, the question as to who was responsible and competent for the decrees which bear the designation Nacht und Nebel --as to whether it was the responsibility of Freisler or the defendant Schlegelberger--would be explained by the fact that Schlegelberger at that time was in charge of the Ministry. However, such an explannation will have to be reserved until a later date. For the monent, I think what matters is to establish as to whether the various documents can be used as evidence against Schlegelberger.
I have already voiced my misgivings when Exhibit 304 was submitted, but I withdrew those misgivings in the end when the prosecution told me that Schlegelberger's name did appear in the enclosure to that letter.
I must now again put forward my objection, in particular with regard to the document which is under discussion at this moment, NG-232. Of that document, it is certain beyond doubt that it is signed, not by Schlegelberger, but by Freisler. At that time Freisler was the competent expert, Referent, for the Division for Penal Matters, whereas Schlegelber, first of all, was in charge of civil law as a whole. Therefore, it is natural that the circular decree of 6 February 1942 should be signed by Freisler, and not by Schlegelberger. I consider it probable, and now more than ever, that the defendant Schlegelberger--concerning Document 276, Exhibit 304--had no knowledge of that document, all the more so as the note of 9 February, 1942, is merely a note by Undersecretary Freisler saying that the defendant Schlegelberger should be informed about this letter. As to whether Schlegelberger actually was informed about the letter, that, in my view, is not proved thereby.
JUDGE BRAND: I wonder if I may interrupt. Isn't this fairly clear to all of you?
First, that NG-232 is the document in issue.