That is correct?
A Yes, I told him that he should write me an answering letter which would put me in the position of being able to suggest that this plan of the Gauleiter Schwede-Coburg should not be supported.
Q. And you also told us that with reference to the document, Exhibit 75, NG 102, that is the Schlegelberger plan for commission for commuting executions, that you had to write it in a way that Bormann wouldn't get onto it. If Bormann is the icy, hard man that you have described him, and I think properly, weren't you a little brave in constantly attempting to get behind Bormann's back by this method while you were in the Party Chancellery?
A. The question did not come through over the translation system. The question did come through, but not what was the prerequisite, what went in front of it. I didn't understand the translation of the two things that you were opposing to each ocher.
Q. Let's try again. It is my fault. You said that when you wrote the letter of June 19,1942 for the Party chancellery turning down the Schlegelberger plan for administering criminal sentences that you had to write in in a way that Bormann would accept it. And now you say that in the letter than came to Borman's Party Chancellery from a Gauleiter who wanted to hang people on the spot you got to Thierack personally so that he would write you a letter which you could fool the Gauleiter and Bormann with. I say to you, wasn't that a pretty dangerous thing for you to be doing if Bormann is as mean as you say he is?
A. Well, the situation was different. In the first case it was a question of having the opinion of the Ministry of Justice there in the draft. In the second case, in the letter from Schwede-Coburg the problem was that there was a suggestion made by a Party office, and I only gave the Minister of Justice an opportunity to state his opinion in regard to the suggestion of the Gauleiter, and only then I submitted the letter to Bormann with my suggestion. That is the difference. And the material, factual material against the suggestion of the Gauleiter could only be given to me by the Ministry of Justice in the particular case.
Q. Now you testified yesterday that at the end of the day, that -- rather, I beg your pardon -- on Thursday that the agreement between Hitler and the Ministry of Justice had reached the point where Hitler only denied one request that Theirack sent him for commutation out of 290.
A. Yes. At least, that is what is apparent from the letter. What is stated in the letter, the figure that is quoted, in part must refer to a time when I was not the undersecretary, according to what is said in the letter.
Q. And then after that, late in November, 1944, Hitler delegated completely to the Ministry of Justice to Thierack the complete right of commutation, and at the same time the right was given to the Gauleiters or the governors, rather, of the Eastern Territories? That is correct?
A. No, that is not correct. Thierack was granted the light with some exceptions. This is apparent already from Meissner's letter which is in the document. The Gauleiters never had the right, but rather the Reichstatthalter, the Reich Governors and Oberpresidenten. Even to that extent as one person held both offices, they have the right in their office as Reichstatthalter and Oberpraesidenten, but this right had been transferred to them already before the time when Thierack became Minister of Justice. That is before August 1942.
Q. Yes, that's right. But after the Hitler order in 1944 which permitted Thierack to exercise all the power of clemency he still had to have the approval of the Gauleiter. That is correct, is it not? Otherwise he would go to Hitler and complain, and you testified that if he did, then of course Hitler would order Thierack to change his opinion. Now I am sure that that was your testimony. What I am asking you is is that the constitutional state that you wanted?
A. No. This opinion of the Gauleiter and this permission that they could have a word in the commutation, I did not recommend that at all. I would be the lest one who would defend this participation of the Gauleiters with even one word.
Q. Did you complain to Thierack about it?
A. I did complain. Not only did I complain to Thierack, but Thierack himself often complained that he had to ask the Gauleiters and ask for their opinion, and I also recall cases where in spite of the negative attitude of the Gauleiter, the case was forwarded to Hitler and in which the clemency plea was granted. I have already described such a case which I myself forced through. This was the Kreiling case in which Goebbels as Gauleiter had objected, and we in spite of that succeeded in having Hitler grant a clemency plea.
Q. Herr Klemm, we will save ourselves, both of us, a lot of trouble with an Exhibit. I will read to you, or hand to you, an exhibit which purports to be the notes of a. conference of superior judges and general public prosecutors held at Weimar on the 3d and 4th of February, 1944. On Page 5 of the translation, which I think is at the bottom of Page 5 of the German, there is a paragraph that says Staatssekretaer Klemm made a speech. Do you find that?
A. Yes, I do.
THE PRESIDENT: Are you marking this for identification?
MR. LA FOLLETTE: I am not yet, Your Honor, unless the witness -- if the witness denies that it states the truth if he -- I am trying to avoid it.
THE PRESIDENT: I should like to know now concerning what instrument, how identified, you are speaking. You don't have to offer it merely because you identify it.
MR. LA FOLLETTE: I realize that, but I have to distribute it. May I proceed and see how the witness will testify, Your Honor?
BY MR. LA FOLLETTE:
Q. Staatssekretaer Klemm stated that no one could expect him to issue a program. He had no program. He considered his only and most noble task that of being an assistant to the Ministry. Does that correctly state what you say, and does that correctly state your position towards Thierack? That is all I want to know.
A. This does agree literally, and this can be seen also from the fact that in the German text the contents of this speech are given in the indirect sentence construction. It said also that he touched different rumors which were connected with his appointment, then one or the other thing is stated. In other words, what is written here is a change between parts which I spoke and descriptions of the contents of what I said.
Q. Let me ask you just this. Did you at that time on the 3rd and 4th of March have no program of your own, other than that you considered it your most noble task to be the first assistant to the Minister? Did you or did you not ?
A. Yes. I was of the opinion that at that time from the point of view of the constitutional state the Administration of Justice was constitutional and I was of the opinion that the Minister has to be supported in this and that this is a task of an Under-secretary.
Q. That is all.
A . But I stated specifically that I do not have a program, especially in consideration of what is said a little bit later on in this speech that I might be considered coming to the Ministry of Justice as an exponent of Party policy because I came from the Party Chancellery. That is the meaning of what was said there.
Q. That was on the 3rd and 4th of February at Weimar, 1944?
A. When I entered my office.
Q. Now on Friday afternoon you discussed the Judges Letters and you said, or rather , Dr. Schilf said, "The Prosecution regards the Judges letters from the point of view of their content as well as their form as an illegal pressure exercised on judges at that time. It asserts that it was a serious intervention in 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 raises today. Now also on Thursday the 10th in the afternoon you said this, discussing the second case that Altmeyer had submitted to you, the plunderers case' case. I am supposed to have said ---- this is what Altmeyer said --- Plunderers in principle should have their death sentence executed immediately. I could not possibly have put forward that theory in an uncompromising way, for I could not defend myself or give orders contrary to the opinion which , as the Minister's own opinion, had been given in the Judges' Letters and that was in the Judges' Letter Exhibit 96, NG 321, Book 1-D.
Now is the judge's letter binding as you said in discussing the Altmeyer matter, or is it not binding as you said on Friday morning?
A For me, it was binding. For me as Under-Secretary, that is as an administrative officer, but it was not binding for the independent judges. To the outside, of course, I had to represent the point of view of the Minister in that matter, but any judge could tell me at any time, "I am an independent judge and I am of a different opinion." That is the difference.
Q In considering the death penalty which Altmeyer submitted to you, do you consider that the judge's letter which had been sent a few months ago before that was binding on you, is that correct? Do I understand you right?
A Yes.
Q All right. Thank you.
A Binding if the question was to represent this point of view to the outside world.
Q On Friday morning, and I think on Friday afternoon, you went over the facts in the Sonnenberg case with Dr. Schilf. Did you or did you not, on the 17th of January 1945, yourself sign an instruction marked "Confidential," addressed to the President of the Supreme Court, the Chief Reich Prosecutor, the President of the People's Court and the Chief Public Prosecutor at the People's Court, the President of the Court of Appeals and the Oberlandesericht, and the Chief Public Prosecutors at the Court of Appeals. Subject: Measures arising in connection with death sentence during the war.
I hand you the original, exhibit, NG--746, which I ask to have identified as Prosecution's Exhibit No. 530, and ask you if that is the document which I have been describing. It's signed by you, dated 17th of January 1945.
(The exhibit if offered to the defendant Klemm)
A I can no longer recall the contents of this thing. May I just leaf through it first?
Q Yes. But it is signed, by you, is it not? Will you just answer me that?
A It says here -- it seems to be mimeographed or a printed paragraph -- it's typewritten underneath: Klemm.
Q Acting, (signed) Klemm.
A I can only say whether I signed it when I see the handwritten original or photostat thereof.
Q Does it say: Certified (signature) Giese, Justice Clerk? Excuse me, Mr. Klemm, on Page 12 under the words "Acting (signed) Klemm," which you say are in some form of type, is there the circular seal of the Reich Ministry of Justice and are there the words, "Certified (signature) Giese, Justice Clerk?"
A It says, "Reich Ministry of Justice, Ministerial Chancellery, Certified Giese, Justice Clerk."
Q Will you distribute these, please?
(Copies are distributed to the Court.)
A This photostat is illegible in part. May I receive a German copy of the document?
Q Oh yes. I have just had them distributed.
Will you turn to Page 3 of the original, or what is marked Page 3 of the German Document; not the first letter. It's on page 4 of the English it provides for the execution. Paragraph 6 says:
"Death sentences will be executed by the executioner by decapitation. I reserve the right of decreeing exceptional execution for individual cases by shooting or hanging.
"8.) Death sentences may be carried out at any time of the day or night, if possible."
Then on page 4, paragraph 14 (1):
"When the convict is ordered to be shot, the execution authorities will immediately contact the nearest Security Police Headquarters or the commander of the Wehrmacht garrison as to the time and place of the shooting."
Then you find attached to the exhibit an enclosure.
THE PRESIDENT: Could you not give us the identification number now that you have distributed this?
MR. LA FOLLETTE: I thought I did, Your Honor. I asked that it be identified as No. 530.
THE PRESIDENT:NG-476 is 530?
MR. LA FOLLETTE: It's 530, yes, your Honor.
THE PRESIDENT: You may postpone your next question until after the recess. There will be a 15 minute recess.
(A recess was taken.)
THE MARSHAL: Persons in the court-room will please find their seats.
The Tribunal is again in session.
Q. I simply want to ask you with reference to exhibit which is marked for identification, 530, NG 746, if * * that is the order which you put out as acting Minister on 17 January 1945?
A. It is possible that I did sign that decree, but I would like you to allow me to give you my views on the matter. The Prosecutor had mentioned the subject of Sonnenburg. The order which I have before me is, in fact, a circular order which summarized all these provisions which were sent to the executing authorities when a death sentence had to be carried out. That order states precisely on page 5 of the German copy, that is Roman numeral II, A, number 6, paragraph 1, that a death sentence is carried out by the executioner by beheading. Paragraph 2 says, shooting is considered when execution by beheading would difficult or if it would mean delay or if other particular circumstances are in favor of not adopting the legal method of execution. Shooting is carried out by a police detachment or by a detachment of the armed forces, Wehrmacht. I can remember that those provisions were introduced in case a man who had been sentenced to death, and who was to be executed, could not be taken to the place of execution because transport had been interrupted for other reasons. In that case the execution was to be carried out by shooting by the police or by the Wehrmacht. Watch time only individual cases were concerned, for which the death sentence had already been passed and the clemency plea had been rejected.
THE PRESIDENT: Mr. Klemm, the question which was directly put to you was whether or not you signed this document, and you said it is possible you may have. Now, is it or is it not your signature on the document?
MR. KLEMM: (the witness) Your Honor, my name does appear on it and the certification of the Ministry of Justice is beneath it.
THE PRESIDENT: Did you sign or didn't you?
MR. KLEMM: I must assume that I did, because it is certified but I do not remember any details about that at all.
THE PRESIDENT: That's all I wanted to know.
MR. LA FOLLETTE: Your Honors, please I would like at this time to distribute NG 584, which we previously identified as exhibit, I think 529, is that not right? ---528. This is the English copy for the Bench and the Reporters. Your Honors, I have not had the opportunity to get an NG nunber put on the next two exhibits, so I would like to read a part of then so the record nay show what they are when they get their NG numbers; to be identified as exhibit 531, is a decree from the Reichsgesetzblatt, 1944, part 1, page 184, dated 21 August 1944; decree for the securing of total warfare, signed by the Reich Minister of Justice, the Deputy Klemm. I send a copy of this to the witness.
Q. Witness, that is one of the decrees that you testified you signed, on Friday, one of the eleven decrees, is that right?
A. Yes.
MR. LA FOLLETTE: I ask that that be marked for identification as Prosecution's exhibit 531, and we will proceed to prepare both German and English as quickly as I can get then done.
THE PRESIDENT: Let the exhibit be marked for identification.
MR. LA FOLLETTE: As the Prosecution's exhibit for identification, 532, I refer to a letter dated Berlin, 7 July 1944, on the letterhear of the State Secretary in the Ministry of Justice, to the Chief of the Security Police and SS Obergruppenfuhrer Kaltenbrunner, signed by the witness Klemm. I sent the photostatic copy of the original letter to the witness.
Q. Is that your signature, Mr. Klemm?
A. This,too, is again only printed but I remember this matter; it concerned the brother of SS Obergruppenfuhrer Kaltanbrunner who after serving with the armed forces, wanted to take the veterns examination.
(The answer did not come through)
THE PRESIDENT: The sound system was not working. I did not hear any of the answer. Will you repeat your answer please.
A. The brother of SS Obergruppenfuhrer Kaltenbrunner had returned from the front either wounded or sick, and had made an application asking that he should be allowed to take the examination which had been rendered easier for persons who had done service at the front.
TEE PRESIDENT: I still did not get the answer.
THE WITNESS, KLEMM: Shall I repeat my answer.
THE PRESIDENT: Yes.
A. The brother of SS Obergruppenfuhrer Dr. Kaltenbrunner had returned from the war either wounded or sick and had made an application to be allowed to take the abbreviated state examination for veterns as a jurist. Kaltenbrunner had asked me to notify him of the decision. I had the expert make a report to me on the matter. The conditions were fulfilled, and the application was approved. In this letter I notified Kaltenbrunner of the approval as he had asked me to do. The brother was in Vienna whereas Kaltenbrunner was, of, course, in Berlin.
Q. Mr. Klemm, I shall read you a list which is not altogether complete, but I believe fair in the statements it makes, of the things that you remember, as I have noted. You remember your actions in the Hohenstein case in 1934; you remember that Thierack opposed the Gauleiter Wunschmann in 1934; you remember that in 1938, "Deutsche Justiz" reported one death sentence for high treason and 16 for treason by the People's Court in 1938; four, you remember that you dealt with malicious acts against the party and state as a district Referent from 1935 to 1936; you remember that in 1935 there was a case prosecuted--I act sorry I will start again.
You remember, five, that there was a case prosecuted about 1936 or 1939 against police officials in Dusselforf, and that Dr. Crohne wanted you to collect statistics against the handling of prisoners by the police in order to get confessions.
6. Your remember the case of the prison director Schaefer. 7.You remember the case in Schleswig-Holstein of the SA doctor who committed abortion and was punished. 8. You remember that while in the Hague the Dutch courts did not pronounce a single death sentence. 9. You remember hat you did not want bad Party members with reference to the Schlegelberger plan for handling clemency in 1942 to influence the Oberlandesgerichts presidents. 10. You remember with reference to Exhibit 35 a letter of August 1st from Bormann to the Gauleiters to contact the Reich Justice Administration in all cases. 11. You remember that as to Exhibit 359, a letter of the 23rd of October 1942 by Lammers to Meissner and a copy for the Party Chancellery, was caused, by the Count Stuergkh case in Vienna. 12. You remember, as to Exhibit 296, NG-324, that on the 1st of December 1942 Thierack wrote you a letter about hanging plunderers, and you remember that while you were in the Party Chancellory that there was little difference between the attitude of the Party Chancellery in Heimtuecke cases, and what there were no recommendation of the death penalty under any existing statute. Now, you either forgot, or have never heard of, Hitler's plans for war. You never saw any of the things in connection with the pogrom of November 1938. All during the war you never heard anything except that which the German people heard over the German raido or in the press. You never heard of the letter of Thierack to Bormann about the extermination of Jews, which was on October 13, 1942. 4. You never heard of Lammers' letter to Bormann about the inadequate sentence for Jews. 5. You never heard of Exhibit 369, NG-424, which was a provision on the 31st of July 1942 for the confiscation of Jewish property. 6. You have no recollection, or know nothing about, Exhibit 401, 4055-PS, which deals with the total solution of the Jewish problem. You did not remember that you initialed Exhibit 456, NG-326 in 1937, which was a letter signed Heydrich, dealing with Jewesses who had violated the racial laws.
And you never heard of the correspondence limiting the rights of the Jews, which is Exhibit 204, NG-151, dated 9 September 1942, although that bears the initials, the letters and initials 3 C, in the Party Chancellery at Munich.
Would you explain for me why it is that you remember so many of the good things you did, and either forgot or never heard of the things that might be injurious to you?
A. I can explain that very easily. Many of the things which you enumerated a moment ago only came back to me because I read about them in the documents submitted by the Prosecution. It was only then that I remembered those things. For the rest, however, whenever I stated that I do not remember, or that I did not know about the matter, I cannot remember that I did see then, and I believe that in every case I have given proof either by the file note or the dictation note, particularly in reference to the matters of the Party Chancellery, that those affairs were not dealt with by Group 3 C on account of the distribution of work plan.
MR. LA FOLLETTE: Thank you. That is all.
BY JUDGE HARDING:
Q. Mr. Klemm, what constituted "more severe interrogation" as practiced by the police?
A. Severe interrogation by the police constituted interrogation first of all, for a longer period, without interruption. Furthermore, it meant smaller food rations-- I suppose it was bread and water--and we described as more severe interrogation also the cases when prisoners were beaten. Those cases we investigated. Paragraphs 440 to 441, and 341, of the Penal Code made such actions punishable.
Q. Was not a certain amount of corporal punishment authorized under certain conditions for certain prisoners according to one of the documents that we have had before us here?
A. Within the administration of Justice beatings were not allowed.
Q. Wasn't there a document introduced here in which so many blows were allowed, so many lashes, in a matter of interrogation?
A. I cannot remember that such a document has been introduced here.
Q. You were, in your various capacities, familiar with the fact, were you not, that in many cases both defendants and witnessesses were subjected to very severe treatment and abuse in the matter of interrogation, at the hands of the police?
A . I only heard of isolated cases, and if they became known to the Administration of Justice they were dealt with by the section about which that ruling was made. We heard of very severe interrogations only from those persons who had been subjected to more severe interrogations, and we only heard of those cases when the persons said that they withdrew their confession because the police forced them to make such confession by beating them up. Only then was it possible to take steps against such methods. The police officials, however, since the establishment of the SS and police jurisdiction, were no longer under the direction of the administration of Justice-that was since 1939--consequently, we no longer exercised any influence on such matters. Such more severe interrogations on the part of the police were not reported to me in my capacity as Under Secretary.
Q. But you had every reason, from your position in the Ministry of Justice, to know that severe interrogations had been at one time authorized and that they took place, is that not true?
A. On the contrary, we never asked the police to undertake more severe interrogations. We attacked that system to the extreme, because a confession made as a result of a more severe interrogation would never have been considered by us as incriminating.
Q. You only knew of the more severe interrogations, however, when you say a witness changed his testimony, is that correct?
A. A defendant?
Q. Or a witness?
A. Well, I never heard of it. At least, I cannot remember a case where a witness had been beaten. I can only remember a few cases from the time before the war, where defendants before the judge withdrew their confession and said that they had only made that confession because the police "compelled me to do so by beating me up."
Q. And you knew of those cases?
A. Such cases were to come to my section, cases where police officials had committed such offenses, and such cases were followed up, and one case from Duesseldorf I have described here.
Q. After September 1, 1939 were there any cases that were followed up by the Ministry of Justice at any time, that you are aware of, in that connection?
A. No, I became a soldier. Then I went to the Netherlands and then I was in Munich at the party chancellery, and in the time in between, the SS and police jurisdiction was established. Cases which were reported to the administration of justice after the first of September , 1939, are not known to me. When in 1944 I joined the Ministry of Justice, general jurisdiction in consequence of the SS and plice jurisdiction which had been established in the mean time, was no longer competent for much matters.
Q. So the question of how the confessions of these defendants had been obtained was no longer investigated by the Ministry of Justice, is that correct?
A. No. The sentences were submitted to us, which contained the findings of the judge.
Q. Did you ever have a suspicion that some of these witnesses and defendants had been subjected to such treatment prior to giving their testimony or confessions in the case of defendants?
A. That that happened in the case of witnesses, I never believed or thought; that it had happened with the defendants I knew from the time prior to 1939. If in the period of 1944 it still happened and if it had become known to the Ministry of Justice, in my view, such cases would have had to be reported on to me, but no such cases were actually reported on to me.
Q. You only had a chance to hear those cases where they changed their testimony, is that correct?
A . Yes, Some were filed during the years 1937 to 1939.
Q. So that if a witness had confessed under torture and did not change his testimony when he came into court, the Ministry of Justice had no way of knowing whether that man had been subjected to such treatment?
A. No, in that case we did not hear of it.
Q. Did you ever suspect that a lot of this testimony that you received was so obtained?
A. No, The idea that-influence was exercised on witnesses in that direction never occurred to me.
Q. Did you during the period of time that you were there--you were in charge of investigation of those cases, so you knew at one time, did you not, that such measures had been used?
A. I knew that defendants had been beaten; therefore, the prosecutions were instituted. But diring that time I did not hear that witnesses were influenced in that matter.
Q. Is it not a fact that both witnesses and defendants were frequently in the hands of the police and that the indictments that were drawn were based upon the evidence submitted to the prosecutors by the police?
A. It all depended. An indictment was made not only in virtue of the police interrogations but the public prosecutor also had to investigate material in favor of the defendants; and furthermore what counted was also whether the testimony by the witness appeared credible. That lay within the discretion of the judge who presided at the trial.
Q. But those witnesses were in the hands of the police. They gave statements to the police upon which the indictments were based, then they came into court and testified and then they went back sometimes into the hands of the police, is that not correct?
A. Generally speaking, the witnesses were not under arrest. It did happen however, that witnesses were brought into court from prison. Those witnesses, if they were under prison arrest, did return to the police. I do not know whether I heard your question properly.
Q. I am not speaking of whether they were in prison in the hands of the Ministry of Justice. I am speaking of--I am asking whether or not these witnesses were not interrogated by the police under their own system before they gave the statements upon which these indictments were drawn?
A. After the witnesses had appeared before the court, they were not returned to the police to discuss their testimony before the court there. There was no further cause for the police to do that. The proceedings were closed by the verdict of the court.
Q. Was here anything to prevent the police picking these people up and taking them back into their hands after they had given testimony and if so what was that?
A. That the police re-arrested a witness after his testimony given before the court on account of this testimony, I never heard of that.
Q. Would you have heard of it and why?
A. I Believe I would, for that would have meant criticism aagainst the supremacy of the administration of justice which would have been particularly crass and severe. We would have heard of that.
Q. You do not question now, do you, that those things happened and happened to a very wide extent?
A. I geg your pardon. I did not get that.
Q. Do you question at this time with your knowledge of the various evidence that had been brought out in the IMT trial and other trials that to a wide extent torture and abuse was used upon both defendants and witnesses who gave testimony in the various cases that were on trial?
A . What I heard now, since the IMT proceedings, we had no idea that things were going on to that extent. I am bound to believe now that those things did occur with the police and that they did occur to that extent, but I have only known it since the evidence that was brought out . **** before the IMT.