MR. KING: I think the fault is mine; I was locking at another section in the affidavit.
JUDGE BRAND: Where is this?
MR. KING: It is the beginning of the second paragraph, the second full paragraph on the first page cf the affidavit.
DR. WANDSCHNEIDER: Does the Court find the place I am referring to?
JUDGE BRAND: Yes.
DR. WANDSCHNEIDER: Thank you very much.
Q In this place it says, if I may briefly repeat: "According to my recollection, already at that time, he was cf the opinion that the people infected with incurable hereditary diseases were to be exterminated." His views were based on actual knowledge of matters he acquired in secondary judgments in the Health Department. Witness, referring to this formulation of your testimony, I am asking you on the basis of what actually occurred did you arrive at this opinion or a similar one?
A Dr. Rothenberger as a member of the Health Department had at that time, to inspect hospitals. He also let me and other associated make such an inspection trip. I, myself, got the most horrible impression from that, and I also talked about it with him. It was a question of individual cases, that is cases of beings -- who could hardly be described by the name of a human being any more, and it was his conception that it would be better if such people should be exterminated, and that was my opinion, too.
Q Did I understand you correctly that you said in agreement with your conception that he said at that time such people better be saved by death?
A Yes.
Q During the examination, did you ever describe this event of the year 1932 in the sense that Dr. Rothenberger stated already in 1932 that such people should better be killed?
A No.
Q You did not state that?
A No.
Q In 1932, did you know anything at all about the concept of euthanasia and the problem that is connected with it? Did you hear anything about it or know anything about it or know anything about it at that time? Did you know what euthanasia was?
A No, the word euthanasia, I heard for the first time in 1943.
Q In your affidavit it says further: After the opinion of Dr. Rothenberger for 1932 is stated immediately following that it reads, and I quote, and I am reading it to you, "As far as I know, he also supported this idea later on, especially later when in his capacity as Under-Secretary, he actively participated in the drafting of legislation." My question to you, witness, is to the fact what previous knowledge did you, yourself, have as a basis of such a judgment?
A No, direct knowledge. I am only of the opinion.
Q Did you have any files on the basis of which you could reach such an opinion?
A No, I am only of the opinion that a --
Q Just a. moment there are other possibilities. In this time, since 1942, did you have discussions with Dr. Rothenberger, conversations from which you could get such information?
A No.
Q How did you reach such a general opinion?
A Because I think such an opinion, in such an important basic question cannot be changed, because the concept which Dr. Rothenberger had gained at that time, in my opinion, he had to keep.
Q Witness, do you, therefore, mean this concept which he could not have changed, in your opinion, during ten years, was merely the opinion of 1932; that it would be more merciful if such incurable sick people should be dead?
A Yes.
Q Did you, in any way, have the present opinion -- want to express the present opinion, of Dr. Rothenberger, from the year 1932 to 1942, that he was of the opinion that such incurable sick people would have been killed?
A No, on no account.
Q Witness, in your affidavit you also spoke about hereditary biological questions, and you said also he was, as far as I know in a decisive position, engaged in hereditary biological legislation." How do you mean that?
A This field did not belong to the divisions which Minister Thierack kept for himself, so that Dr. Rothenberger, in my opinion, as State Secretary must have participated in them.
Q Do you have any concrete evidence, files, drafts of laws, and the like, that you were thinking over when you answered this question?
A No.
Q Or, did you only quite generally answer the question in that way because you were of the opinion that as Under-Secretary he must have been competent?
A Yes.
Q At the end, witness, you made some statements about Ministerialdirector Letz who was in Division I in the Ministry of Justice, and you said that he was a luke-warm National Socialist. Can you tell the Court briefly something about the personality of the Ministerialdirector Letz, and his relationship to Dr. Rothenberger -- what he was in Hamburg and in Berlin?
A Herr Letz was in Hamburg a Deputy of Dr. Rothenberger's. He was Vice-president of the District Court of appeals. I know that Dr. Rothenberger thought very highly of him as a good worker as a critical person, and that he knew well that he was everything but a fanatical National Socialist.
Q Critical traits are sometimes very easy to pronounce. Please give some examples how his attitude was, expressly in some statements he made, and in the treatment accorded other persons.
A I know for example that Ministerialdirector Letz made rather flowery statements in regard to the Minister, usually. He said for example, that he was a Neanderthalor.
Q What did he mean by that?
A That, as far as I know is a very primitive person.
Q If we now go into the complete history, pro-historic times, to the zoological, can you how give another characteristic?
A Yes, he also called him Mungo.
Q What did he mean by that?
A Mungo, as far as I know, is a little animal like a beaver that has its cars every where, and puts its nose into everything.
Q Witness, the affidavit which you originally made out, you heard read here by me in its essential, parts, and have made the supplement which resulted from the cross examination today. Do you consider that affidavit of 5 December 1946 -- do you maintain it together with the additions of the cross examination, together with the results of the cross examination today?
A Yes.
DR. WANDSCHNEIDER; Thank you very much. I have no further questions.
EXAMINATION BY MR. KING:
Q Witness, just one Question, Can you give an approximation of the approximate number of people from Hamburg that Dr. Rothenberger brought with him when he came to the Justice Ministry?
A Yes, I believe there wort about 16 or 18 people who came in the course of time, one after the other.
Q And, would you say that these people were formally in key positions with Dr. Rothenberger in Hamburg?
A In leading positions, no. They were director's of district courts, district court judges, yes, judges, but not actually leading officials.
Q Not leading positions in the sense that they were above Dr. Rothenberger, of course, but they were people of some importance in the administration of the court system in Hamburg, is that right?
A Yes, certainly they were people whom Dr. Rothenberger had selected according to the point of view, as to when he needed them in the Ministry of Justice.
MR. KING: I have no further questions, your Honor.
THE PRESIDENT: The witness may be excused.
(Thereupon the witness was excused and withdrew from the courtroom.)
Priest Buchhelz, a witness, took the stand and testified as follows:
BY JUDGE BRAND:
Q Will you hold up your right hand and repeat this oath after me:
I swear by God, the almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BRAND: You may be seabed.
DR. WANDSCHNEIDER (for Dr. Rothenberger): I ask permission to cross examine the priest Buchholz.
by dr. wandschneider:
Q. Witness, you made an affidavit for the prosecution, which is Exhibit 301, Document book 7B. I have only two brief questions, before I go into those questions I ask you, witness, to state to the Court your name, your last name, and your present duty.
A. My name is Peter buchholz. At present I am prison Chaplain in Dusseldorf. I was born on 31 Janvier 1888 in Oberpleiss, in the District of Cologne.
Q. Thank you very much. My two questions refer to a part of the affidavit on page 2, the first half of page 2, it begins with the words - "May I ask whether you were present when in September 1943----" Does the Court have the place? Exhibit 301, Document NG-534. Beginning on page 28 of the English Document book, page 2 of the original, the last half of the page....it begins with the words -- "may I ask you--"
Father, at the place which I have just pointed out in your affidavit you said that you were present when in September 1943 many people were executed after and air raid. May I ask you whether, within the literal meaning of this statement, you were present during the executions or not?
A. During the execution itself I was not present. I merely wanted to state that during the time of the executions I was present in the institution in order to administer the last rites to those who had been sentenced to death before they went to the scaffold.
Q. All right. You further state in your affidavit that there was a clemency plea under way for many of these people -- that is, that the decision about the pardon had not yet been made, and that certainly many of them would still have been pardoned. In this connection is it known to you that in individual cases erroneous executions were carried out -- that is, on the basis of an error of the institution carrying out the execution. The execution was Carried out without having a decision concerning the pardon at hand.
A. I remember that in the case of the executions in September 1943 several individual cases happened which were due to an error of the executing authority after the air raids. Those who had been convicted were executed without a decision having been made about their clemency plea.
Q. Did you mean those cases by the sentence which I have just read?
A. Yes, other cases of that kind, except in connection with the executions of September 1943 I do not know.
Q. You thus mean to say that outside of these individual cases of erroneous executions no further cases are known to you in which executions were carried out without previous decisions about the clemency Plea?
A. Yes, by my answer I mean to say that.
DR. WANDSCHNEIDER: Thank you. I have no further questions.
DR. SCHILF: (for defendants Klemm and Mettgenberg): My cross examination also concerns the Same affidavit of the witness - that is, Exhibit 301.
BY DR. SCHILF:
Q. In this affidavit you described your own position as chaplain of the penal Institution in Ploetzensee, and in so saying you said about yourself that you had a position of a trusted person in relationship to the Ministry. I would like to ask you - may I ask you to clarify this statement by some facts?
A. When I took over my position as prison chaplain in Ploetzensee I simultaneously, from my predecessor Oberpfarrer Hohoff who had died in the Fall of 1943, had taken over the task in all matters of the prison regarding the spiritual care of Greater Germany....in all matters which made it necessary to have some discussions with the Ministry, to appear there, in order to eliminate local difficulties of a personal, official, nature. And that is, in confidential talks mainly with the Referent Ministerialrat -- Ministerialrat counselor Dr. Richer.
Such difficulties arose, for one thing, from 1943 on very frequently, and you will understand this especially well if I tell you that with the taking of office of General Public Prosecutor Hansen of the Highest Prussian Court of appeals, the Kammergericht, a very sharp tone began against the spiritual care in prisons and against those who exercised the spiritual care, the priests, the chaplains.
Q. Father, if I understood you correctly Dr. Richer was expert in the Ministry of Justice?
A. Yes.
Q. Dr. Hansen was General Public Prosecutor?
A. Yes.
Q. At the Highest Prussian Court of Appeals in Berlin and the prison Ploetzensee was probably subordinated to the General Public Prosecutor Kansen?
A. That is quite correct.
Q. In your affidavit you mention that the danger had arisen again and again that all penal institutions would be subordinated to the SS, and thus to Himmler, so that the entire matter of spiritual care would have been eliminated, in your opinion at that time. Did you discuss these questions with Dr. Richler too?
A. Yes, and I could speak with him about these matters quite openly because even though he was a Party member he was in his innermost self....had remained a convinced Christian and he kept his position and utilized it in the main in order to help us priests in our work which became consequently more difficult -- to help us as well as he could.. And I knew from him, too, about these dangers - which had endangered the spiritual care of the Penal Institution from time to time, and again and again. If it was possible to eliminate these dangers in it was not in the least a service which Dr. Richler performed.
Q. Father, you further said in your affidavit that in 1943 regulations were issued currently making the spiritual care more difficult, and you stated that this was done upon the initiative of General Public Prosecutor Dr. Hansen.
May I ask you to inform the Court of your knowledge, by means of concrete facts - namely, how Hanzen could have given the initiative for this.
A. In may 1943 I took over my duties at ploetzensee. Of course, I had to report to my competent superior, General Public Prosecutor Hansen. He received me, but the manner in which he received me and the things which he told me on that occasion justified what I had already previously been told about him by my colleagues in Berlin. He said, among other things, that he would -- I want to say first that Hansen had entered his office a short time before that... Thus he said, "I shall interest myself in this spiritual care, and you will hear about it soon". And we did hear about it because soon after that these limiting regulations came out, about which I already spoke during my interrogation in Berlin and which probably can be read in the transcript of that interrogation. If I may state, the most important one of these regulations in detail-
Q. That isn't necessary. I my I ask you to toll no further whether you discussed this attitude of Hansen with Dr. Eichler too?
A. Yes.
Q. And what did Herr Eichler tell you?
A. Eichler, in view of his attitude toward spiritual care, recognized its value in penal executions and supported it. Eichler was alarmed about the course that was entered, and described Hansen as the driver and the evil spirit of the ministry of Justice, who was responsible for all the limitations and hindrances which were put in the way of spiritual care in the future.
Q. Father, you told the Tribunal about a personal meeting with Hansen, and that was when you made your first visit reporting for work. Did you still have meetings with Dr. Hansen later on?
A. I met him once in Ploetzensee, after these executions, when he had all of the officials of the prison called together. On this occasion he had discharged the man who was prison director up to that time, Oberregierunpsrat Vacano, in a not very commendable manner. The more profound reason for this was probably the not reliable attitude of Vacano to the meaning that Hansen meant by the word "reliable", because Vacano was not a Party member; he was a convinced and practicing Catholic and wherever and however he could he supported the spritual care and tried, in spite of the limiting regulations issued by Hansen--that is, by the Ministry of Justice--to give spiritual care the possibility of exercising its functions. The outside cause of his forced pensioning was the fact that during this air-raid night from the 2nd to the 3rd of September, during which the death house, where the three hundred persons convicted, to death were expecting their execution, went up in flames, in spite of their being shackled, several had succeeded in fleeing. That was used as the superficial cause of the dismissal of Vacano. On that occasion Hansen said, in a very sharp terms: "I warn everybody not to try to look for any other version or to speak of any other reason for which Senior Govern ment Counsellor Vacano is dismissed from this office."
Q. Father, you have now told us the opinion which Dr. Eichler had about Hansen. You have also told us that he regarded him as an evil spirit, with special reference to the things he did in order to hinder the spiritual care. I ask you, Father, to express your opinion to the Tribunal.
A. From the things which I experienced in regard to Hansen, directly or indirectly, I can merely confirm that Herr Eichler, in his judgment about Hansen, did not go too far.
Q. May I ask you to inform us further whether in your activity you personally had any contact with or talked to the then Undersecretary Klemm, who is now as defendant?
A. No.
DR. SCHILF: I have no further questions, Your Honor.
THE PRESIDENT: Dr. Link, we have only eight minutes yet until the usual adjournment time. Will that be a sufficient time for your cross-examination?
DR. LINK: For my cross-examination, Mr. President, it will probably be sufficient. I know that the witness is interested in being able to leave today. If it can be determined whether another one of my colleagues wants to cross-examine him then perhaps one could decide whether it would be better to conclude tomorrow morning.
THE PRESIDENT: If you think it won't take longer than that you may proceed, and if it does take a little longer, we will be patient with you.
Let me inquire whether any other defense counsel desire to crossexamine this witness.
(Show of hand by Dr. Doetzer) It doesn't look possible, Dr. Link, to complete this cross-examination tonight under those circumstances, because another attorney wants to cross-examine.
I would like to accommodate the witness of course, but unless we would sit quite a little longer--May I inquire how much additional tine the other counsel would like to have?
DR. DOETZER: Five minutes, Your Honor.
DR. LINK: Mr. President, under the circumstances I would like to request that the continuation of the cross-examination take place tomorrow after all, because in that case, if it is not brought to a conclusion today in any case, I can then still speak with the defendant Engert, whom I still have to visit in the hospital.
THE PRESIDENT: That is a vory reasonable request. The witness is the only one that is being made to stiff or, I guess, and he looks like he is good-natured.
We will therefore adjourn at this tine, until tomorrow morning at 9:30.
( A recess was taken at 1625 hours, 27 May 1947, until 0930 hours, 28 May 1947.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Altstoetter, et al, defendants, sitting at Nurnberg, Germany, on 28 May 1947, 0930-1630, Justice Carrington T. Marshall, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you please ascertain if all the defendants are present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert has been temporarily excused at his own request. Let proper notation be made.
Proceed with your cross examination, Dr. Link.
PETER DUCHHOLZ - Resumed
CROSS EXAMINATION (Continued) BY JR.
LING: (Attorney for Defendant Engert)
Q. With the permission of the Court, I continue the cross examination. The questions which I have to put concern the affidavit which we were discussing already yesterday, Document NG-534, Exhibit 301, Book VII-B. Witness, toward the end of your affidavit in answer to the question as whether you knew which gentlemen in the Ministry of Justice were dealing directly with questions of penal execution you mentioned the name Engert, correctly Engert, who you say was in charge of penal executions during the last period, May I ask you first, for clarification, did you mean to say by it that everything which you stated in your affidavit, all the facts you stated in the affidavit arc in connection with the defendant Engert; that is, above all the information about this execution after this air raid of Ploetzensee?
A. I did not want to express that by naming Engert; I merely meant to say that Engert was in charge of the division for penal executions in the Ministry of Justice.
Q. Do you then agree with me, if I say that in the case of these executions we are not concerned with measures of administration of penalty (strafvollzug) with which Engert was dealing principally in the Ministry of Justice, but about penal executions (Strafvollstreckung) which did not concern him principally, nor his division.
MR. KING: If the Court please, I object to the question for the reason that this witness is not competent to know the division or in what manner the defendant Engert administered his division, The witness is a priest, not a lawyer.
DR. LINK: May I say that the witness must be familiar with this because in his affidavit he starts this affidavit based upon the fact so to say that ho was trusted and consolidated by the Ministry in matters of spiritual care.
THE PRESIDENT: We will leave it to the witness to determine whether he is able to answer the question or not.
A. In my opinion Herr Engert did not have anything to do with the penal executions; these tasks are matters of the Prosecution, and, as far as I remember, Herr Engert merely was in charge of the Strafvollzugsabteilung -- the Penal administration Department,
Q. Yes. Witness, yesterday you repeatedly mentioned the name of Ministerial Counselor Eichler as being the man to whom you turned with your efforts for an adequate protection of the spiritual care of the prisoners, and from whom you got support and help; is that correct?
A. Yes.
Q. In the case of this Ministerial Counselor Eichler, is that the Referat of Department V of the penal Administration Division, of the Defendant Engert?
A. That is correct. Dr. Eichler, under Engert, had to direct Division V under Engert as Ministerial Director.
Q. Would it perhaps be more correct that he had to be in charge of a Referat in the division?
A. Yes.
Q. Specifically in regard to this point of religious care of the prisoners, may I ask you whether you know about a regulation which you presumably succeeded in bringing about with Eichler or Engert, a regulation of the 12th December, 1944, which concerned itself with a change and modification of the regulations which had been issued previously. It is Document NG-770, Exhibit 291, in the same Document Book, VII-B. Jan you remember that, witness?
A. Yes.
Q. Jan you briefly describe to the Court how this rather obvious mitigation came about?
A. In the winter of 1943, probably on the initiative of General Prosecutor Hansen, a regulation had been issued by which basing itself upon necessary war time measures, and the exclusive use of the prisoners for war time work the religious services were prohibited. I can no longer remember the exact dates when this order was issued, nor, of course, the exact wording. One can probably understand that thereupon letters of protest arrived from all over the Reich; That we prison chaplains asked the Bishops to enter into the matter, and they above all pointed out what impressions this measure made not only within Germany, but also abroad.
Together with my Protestant colleague Oberfuehrer Knorth I reported the wishes of the Episcopate and the Protestant clergy, and also our own wishes and our misgivings to the Ministry, and Dr. Eichler lent us a very understanding ear, especially since he expressed quite freely that ho could not understand this order and how he had tried to prevent its being issued. Thereupon, if I am not mistaken, ho spoke with the Minister himself, at least with Engert, who was his immediate superior in office, and then this regulation which has just been mentioned was issued. Naturally, one could not simply withdraw an order a few weeks after it had boon issued; thus, Eichler found a formulation which represented the matter in such a light as if the prohibition of religious services was cased upon a misinterpretation of the order.
And, as if this had merely been intended, for those cases, were direct war time measures, made religious services impossible. The religious services, especially at Christmas and New Years wore allowed to be held.
Q What do you think, witness, is the reason for the fact that this somewhat devious method they believed to be the only way to be followed in Division V of the Ministry of Justice, according to your own knowledge of the facts. Was it more the resistance of the Minister himself or was it due to those matters which you mentioned yesterday which are connected with the name of Hanzen?
A The final opposition, must have been with the Minister, himself, who did not want to withdraw an order today which he had issued yesterday. The regulation itself, had quite certainly been issued especially on the initiative of Hanzen so that it can be understood that there was some opposition on his part against the withdrawal of this order.
Q May I now ask you, in addition to Eichler, did you also have personal contact with Engert in your efforts, in your relations with regard to the Ministry of Justice?
A I went once, personally, and that was probably in this matter to Eichler and then left with Eichler to Engert in order to discuss these matters with him personally. At that time I did not feel any personal opposition on his part to our justified desires.
DR. LINK: May it please the Court, may I make a remark that it has been pointed out to me that, due to the translation, the designations which I put in contrast at the beginning of the questions on "Strafvollstreckung" and "Strafvollzug", that is, serving of the penalties were both translated with the word "penal execution."
THE PRESIDENT: (Did not have his switch on.) Are you referring -
DR. LIN: No, that isin regard to my first questions, regarding the affidavit of the witness, 534, that is NG 534. Tho two concepts, Strafvollstreckung that is execution and on the other hand Division V, Strafvollzug, penal administration which were connected with prison sentences, treatment of prison matters, and so forth; and, that contrast was not apparent if both concepts which are of opposing nature are translated by the same expression.
I just wanted to point that out. Further, I have a final question:
Q In your affidavit, you also speak about -- page 3 on the bottom of the German text in the affidavit, about the constant shackling of those sentenced to death was based on an expressed order of the Ministry of Justice. In your efforts in the Ministry, did you also point out these matters and try to effect a discontinuance or an ameloration? Was that not within the framework of your tasks?
A Personally, such efforts were not within the framework of our positions and tasks, but in view of the position my Protestant colleague, and my position as a trusted man of the Ministry, in regard to the Ministry, vie had the possibility also beyond the framework of the spiritual care in the narrow sense, to bring up matters which did not belong directly in the field of spiritual care. Thus both of us Oberpfarrer Knorth, whom I just mentioned and myself, in our efforts for in disturbed continuance of our work in spiritual care, also repeatedly used the opportunity to report these matters to Eichler. If I am not mistaken an ameloration took place to that extent, at least, that the fetters, were removed when a person sentenced to death was visited by his relatives so that the prisoner would not have to go to the visitors room and speak to his relatives in the undignified form of being fettered.
Q Yes, Father, your memory is nob mistaken at all that extent when you were concerned with the document which you remember which is probably the document NG 667, exhibit 297, which is also in the document book 7 B, which was mentioned before. It is the document which Engert signed and. issued which contains, which has the contents which you just related.
I thus can point out, witness, that this ameloration of a regulation which had previously been issued by the Reich Ministry of Justice was due to your efforts, was to the understanding attitude of Eichler who was then also covered by Engert to that extent.
A Yes.
DR. LINK: I have no further questions. Thank you.
THE PRESIDENT: You have stated that regulation No. 4. was in the winter of 1943. I think you are mistaken about that, was it not in 1944?
THE WITNESS, BUCHHOLZ: I did not quite understand your question, your Honor, in what I was supposed to be mistaken?
THE PRESIDENT: In referring to the directive of Engert, which is designated in the exhibit as regulation No. 4, you stated that was in the year 1943, but are you not mistaken about that?
THE WITNESS, BUCHHOLZ: Yes, that is correct, it was 1944.
DR. DOETZER (for defendant Nebelung): May it please the Court, I ask permission to continue the cross examination?
THE PRESIDENT: Proceed.
DR. DOETZER: My questions relate to the affidavit of the witness, exhibit 301, NG 534, and they relate in particular to the statements which are in the German book, on the last two pages, pages 56 and 57 of the German document, 39 and 60 of the English, and they are concerned with the procedures and. methods of the People's Court.
Q Father, may I direct some questions to you? During your examination, you pointed out your opinion in regard to methods and procedures of the People's Court. During your activities as Chaplain did you ever participate in a trial of the People's Court?
A No.
Q During your activities in Berlin, did you over speak with a judge of the People's Court about the methods and procedures of tho People's Court?
A No.
Q Then, I probably understand your affidavit correctly, if I think that your statement which you made there, are based on the stories told you by those who were sentenced?
A My statements wore based, first of all, on what those who have been sentenced told me about the trial, and on the other hand, on those things I had heard from relatives of the convicted; the relatives who had the opportunity to witness the trials.
Q Father, at that time, did this circle of persons tell you that the trials and methods before all senate of the People's Court were the same, or did you gain the impression from these conversations that between the individual sentences, their methods, the trials and procedures, there were basic differences?