Chapter VII: Introduction (6)

The indictment also makes it necessary for us to decide how far a state may and can consider itself competent to extend its power to punish [Strafgewalt] acts committed abroad. Is it consistent with international law to prosecute foreigners for punishable acts committed abroad? The extent to which a state may take it upon itself to take action for acts committed abroad depends on whether such state inclines toward the principle of personality [Personalitaetsprinzip], the principle of territoriality [Territorialitaetsprinzip], the principle of protective law [Schutzrechtsgrundsatz], or the principle of universal law [Weltrechtsgrundsatz]. As can be seen from a study of comparative law and from the history of law, diverse and variable opinions are held about this in the different countries, and the science of international law after the First World War shows this in particular. We shall point out the basic principles which are contained in sections 3 and 4 of the Penal Code of 1870, and we shall find again in the Supplementary Law (Novelle) of 6 May 1940, which extends the sphere of authority of the penal law, and which is now being assailed by the prosecution, ideas drafted for the reform of the penal law conceived long before 1933. Article 153a of the Code of Criminal Procedure is, to a certain degree, intended to act as a safety valve against a too exaggerated application, and has in fact greatly reduced prosecutions, and it shall be dealt with in this context.

The discussion on the introduction of German law and the establishment of German courts in the Protectorate will cover the three decrees of the Ministry of Justice, which were also issued as a result of a decree published by Hitler in the form of a law, and an ordinance supplementing this decree, both of which were not countersigned by the Reich Ministry of Justice. In this connection, it is necessary to clarify the international relations existing between the so-called Protectorate and the German Reich. Are we concerned with a bilateral international treaty negotiated between Hacha and Hitler, an intervention, an annexation, or an occupation? From the subjective point of view, what the German public and what the defendants actually knew about conditions then prevailing will be decisive in each case. We shall have to discuss here and at other occasions--and this is not dependent on the above--whether within the scope of the indictment concerning a crime against humanity, the actually selected form of legislation and administration of justice is not also justified in its scope under different international conditions. Can one, to give an example, consider it inhuman if members of the Protectorate were subjected to the provisions of the German Criminal (Penal) Code regarding treason and high treason, if the provisions of the law governing occupied territories would also have justified the same penalties for aiding and abetting a hostile army?

With regard to the introduction of German law in the Eastern territories we must first of all consider that they were essentially divided into the following three groups, namely:

1. Territories which were part of the Union of Soviet Republics
after September 1939;

2. The so-called Congress Poland [Kongresspolen], the principal
part of the Polish Republic, which was administered under the
designation of Government General, and finally;

3. The western parts of Poland, which before 1918 were made
up mainly of the German provinces of Poznan, Upper Silesia,
and other small parts of provinces. German jurisdiction was
introduced only in areas mentioned under 3, and they were
designated as “Incorporated Eastern Territories.” The former
Russian territories mentioned under 1 were subordinate to the
military and civilian governors, and the Government General
mentioned under 2 to Governor General Dr. Frank. Both these
groups were completely outside the administrative competency, or
even the sphere of influence, of the Reich Ministry of Justice.

If, therefore, we have to concern ourselves with the question of the introduction of German jurisprudence only in the so-called Incorporated Eastern Territories, then we shall call attention to a point of view widespread in science and actual application, whereby a declaration of war renders treaties [staatsrechtliche Vertraege] meaningless between the parties at war. Not only was this point of view especially advocated in a detailed justification by the Reichsgericht, as the German Supreme Court, already after 1918, but it was also championed in French works on international law, as for instance in Foignet’s Droit International Public [International Public Law]. It will be shown that other states have in fact also accepted this point of view. The recognition that this viewpoint concerning international relations was actually followed in practice will be shown by an agreement concluded between Germany and the Soviet Union, which pertains to judicial procedure in civilian matters in Polish territories incorporated into the Soviet Union in 1940.

The answer to the question--which has already come up many times during the examination of witnesses by the Court--namely the question, whether it was permissible to apply the criminal ordinance for Poles [Polenstrafrechtsverordnung] also to those Poles who did not come to Germany of their own volition, will depend on whether we consider the introduction of German jurisdiction in the above-mentioned extent admissible. I don’t believe that the evidence presented by the prosecution covers a case which proves that a Pole who did not come to Germany voluntarily, was sentenced. Generally speaking however, we will have to take into consideration the fact that the Pole who came to Germany was subject to that law which then applied in his former place of residence.

So that the jurisdiction in so-called Night and Fog [Nacht und Nebelsachen--NN] cases, can be judged, we shall put in evidence that in the main the military courts alone were competent. Section 3, paragraph 2, of the Decree for Military Jurisdiction During Wartime [Kriegsstrafverfahrensordnung] formed the legal basis for handing over those cases to the general courts. This decree concerning military jurisdiction during wartime and special operations was issued on 17 August 1938, and published in the Reich Law Gazette 1939, part I, page 1457. It was only signed by the Fuehrer and Reichskanzler and by the Chef des Oberkommandos der Wehrmacht [Chief of the Supreme Command of the Armed Forces].

This decree fixes the scope of military jurisdiction and subordinates all foreigners and Germans to this military jurisdiction for all criminal offenses committed by them in the area of operations. According to section 3, paragraph 2, of this decree, military courts however are to prosecute such crimes only if it is judged necessary for military reasons. It is within their discretion to turn over the prosecution of criminal cases to the general courts.

On the basis of this legal foundation, and in accordance with an agreement between the Chief of the Armed Forces Legal Department, Dr. Lehmann--who has appeared here before the Tribunal as witness--and the former Under Secretary Dr. Freisler, prisoners held in Night and Fog cases were placed before a German court in the sense of paragraph 30 of the Hague Regulations on Land Warfare.

The fact that the proceedings [of an NN case] were kept secret in all its phases was justified for military reasons. According to paragraph 6 of the basic treaty of the Hague Regulations on Land Warfare, military interests come first, and then comes the protection of the civilian population. The administrators of justice could not decide about the scope of the military interests. It could never be the task of the civilian judicial authorities to judge whether the military commanders correctly interpreted the competition of military necessity in the sense of subparagraph 8 of the introduction to the basic treaty of the Hague Regulations on Land Warfare.

Within the framework of these military necessities we will also clarify the motive of intimidation which follows from this. A deterrent could, according to the views of the parties concerned, be achieved only by the severest punishment, with a judgment in the enemy country. The legal basis for this was given without more ado in accordance with those existing provisions of military law which correspond to international law. It concerned cases throughout which can be punished with death, according to general military law, such as espionage, sabotage, aid and comfort to the enemy, and illegal possession of arms. Is it then a violation of the law of humanity if allowance was made for the principle of a deterrent in another manner, and standards were introduced into the proceedings before the courts in Germany which, regarded absolutely, are attacked by the prosecution, but which have been introduced here to avoid an administration of justice which would pronounce the death sentence excessively? We will prove that in the proceedings before the Night and Fog courts, sentences of imprisonment were pronounced in an overwhelming proportion, and that the quota of death sentences was very small. It will be clearly shown that the deviations from the normal proceedings which were shown by the Night and Fog proceedings were all conditioned by the principle of secrecy. A full consideration of German criminal procedure will show that many limitations in the leading principles of German criminal procedure mean either no disadvantage at all, or at any rate merely a far lower degree of disadvantage than it may appear to a person accustomed to thinking only along American principles of procedure.

Article 3, paragraph 2 of the Rules of Military Criminal Procedure will also prove that the Night and Fog prisoners had been handed over to the civil authorities only for the purpose of the execution of the criminal proceedings, and that moreover the power of disposal over these prisoners was reserved for the offices of the Wehrmacht.

When we see that the Night and Fog proceedings had been taken over by the judicial administration by virtue of an order of the Fuehrer and by virtue of the delegation of the military authorities competent therefor, the question of the relationship of international law to the German State law will also be submitted for consideration. The German science of political and international law has always unanimously advocated the view that state law takes precedence over international law. This would be of significance in each case for the question of a consciousness of injustice on the part of the defendants.

The prosecution has also concerned itself with “lynch justice” [Lynchjustiz]. The defense will present documents proving that the judicial authorities criminally prosecuted, in spite of the violent opposition of the Gauleiter concerned, Germans who had mistreated or shot Allied fliers forced to abandon their planes, and that they protected Germans who treated such Allied fliers humanely. This positive attitude of the judicial offices will constitute an illustration of the relations of the powers [Machtverhaeltnisse] at that time. The Party and the police in their attitude were opposed to each other. The leader of the Party Chancellery had ordered all State and Party offices not to interfere with the execution of “lynch justice” on Allied fliers. The Minister of Justice could not ignore this order. He applied it in a manner that could be interpreted as quashing the proceedings. This weakening of an order instigated by the Party and the cases in practice mentioned show here, too, the basic tendency in the consideration of the actual relation of the powers.

Arguments from the aspect of reprisal will also be made, which are supplementary to the question of “lynch justice.”

The German Law of Pardons needs also to be presented and dealt with in detail, since it represents the basis, after all, for the proper evaluation of numerous documents presented by the prosecution, including the report lists of the Reich Ministry of Justice in matters of the death sentence. It has been fully codified, and we will refer to the numerous legal provisions. The entire system of pardon will justify the statement that it was most painstakingly built up with every safety measure and must withstand any criticism as a system. The law of pardon was incumbent upon the head of the State. Hitler transferred his executive power to Reich Minister Thierack, even for death sentences, whereas the latter’s predecessor in office, Reich Minister Guertner, and after his death, Under Secretary Schlegelberger, were restricted in the execution of the law of pardon in that they could recommend to Hitler to pardon a person sentenced to death, but they themselves could not pardon a person. What resulted is necessarily an orientation toward the utmost which could be obtained from Hitler. The manner they used and how the whole tendency on the part of the participating offices was to exhaust fully the possibilities for pardon which were offered will be shown in the evidence.

From the individual provisions we will see that in matters of death sentences, for example, the Oberstaatsanwalt, regardless of whether the condemned person had personally submitted a petition for pardon, had to make a thorough report on the question of pardon after he first gathered the attitude of the court, the presiding judge, the prison authorities, the police, and still other offices prescribed in special cases. This report goes to the Generalstaatsanwalt who on his part must then state in detail his attitude about the pardon report. In the Reich Ministry of Justice, special Referenten had been appointed for dealing with pardon questions. These Referenten were supported by numerous co-workers. The co-worker had to present an opinion with an exact report of the facts, an opinion on the legal question of the individual case, a criticism of the judgment with regard to the factual and legal aspects, and a detailed statement on the question of pardon. The Referent, on his part, as well as the division chief, had to add their attitude to this opinion. Only if all reporting offices, the co-worker, the Referent, and the division chief unanimously recommended that the sentence be carried out was the matter designated as a so-called smooth affair [glatte Sache]. In this case the Referent in charge of death sentences reported personally to the Minister, calling special attention to all the circumstances of the case worth remarking on. On the other hand, even if one of all these participants recommended commuting the death sentence to a prison sentence, then the co-worker had to present his detailed opinion in person to the Minister; and the Referent, the division chief, and the under secretary stated their attitude at the request of the Minister.

The same procedure was also used in principle in cases of so-called immediate execution [Blitzvollstreckung]. This concerned cases from the last years of the war, in which the facts of the case and the legal question to be decided on were straightforward; moreover, it concerned cases in which, on account of the fact that the deed had caused considerable stir among the public, a special deterrent effect should be obtained by carrying out the sentence as soon as possible after the deed had been committed and judged. The only difference in dealing with these immediate executions and the usual procedure was that all reports and opinions were given by telephone, telegraph, teletype, or verbally, and on account of its being a straightforward case no files were submitted.

The indictment also contains the charge that the amnesty laws were administered according to political view. The provisions in question will be discussed in detail when the evidence is presented.

Hitler’s constitutional right to quash pending criminal proceedings [Abolitionsrecht] will be shown in its practical meaning.

Regarding the carrying-out of sentences we will deal with the legal provisions and the regulations applicable in penal institutions. The defense will prove that no crimes against humanity were committed in penal institutions of justice by its officials with the exception of occasional violations which are unavoidable even under the best directions. The rules of the strict legal provisions of the German Penal Law against the ill-treatment of prisoners will emphasize this point. The cases mentioned which date from the last days before the collapse offer, as a singular sign of that moment, no basis for a general judgment of the German execution of punishment and will be referred to as each individual case comes up.

The action of the Spruchrichter dealt with in the indictment and the charges raised in this connection will bring the legal position of the German judge up for discussion. We shall see the judge as an independent official who is not bound to directives but only to the law. We will discuss the positivism of the German interpretation of law. We will deal with the prosecution’s charges arising from the directing regulations. We will show that they are merely a reference to the motive and aims of the law in question, and that they, to some extent, give a clear conception of the policy of the legislator regarding crime. They are a clue to the way in which the legislator imagines punishment should be awarded by the judge. They are in no case a general directive or a directive pertaining to an individual case.

In dealing with the position of the public prosecutors we will refer to the principle of legality which is laid down by law, and according to which the public prosecutor was bound to prefer a charge as soon as there was sufficient suspicion that the criminal facts as laid down in a legal provision existed.

In conclusion the defense will also deal with the legal questions, arising from Control Council Law No. 10 itself. We know that the Tribunal has been called together in order to pass judgment on the basis of this law.

On the basis of this actual fact and in compliance therewith, we will for practical reasons refrain from repeating the relevant objections already raised in the proceedings before the IMT and other proceedings before similar Tribunals in session. On account of these considerations we will restrict ourselves to the real legal questions as to whether an indictment is permissible from the point of view of conspiracy in war crimes and crimes against humanity of Control Council Law No. 10. In this respect my colleague, Dr. Haensel, will provide detailed statements hereon in due course.

At the beginning of the evidence for the defense and in connection with the opening statements on behalf of the individual defendants, the defense intends to call in two experts for the legal questions of general interest, namely Dr. Jahrreiss, Professor of Public and International Law at the University of Cologne, and Dr. Niethammer of Tuebingen, formerly attorney at law, now Honorary Professor of Criminal Law and Criminal Procedure.

As far as documents being introduced with regard to the general questions discussed--

We will not be able to produce Dr. Jahrreiss at this time. Professor Jahrreiss cannot get away; he will only be available later on in July, and perhaps a suitable moment will come then when he can be examined when we have dealt with the cases of the officials of the Ministry of Justice.[72]

As far as documents being introduced with regard to general questions discussed, they will be handed over during the defense of the individual defendants. For the purpose of survey we will at the conclusion hand over the documents relative to a particular subject compiled in a special document book.

The defense has distributed the subjects which have arisen as a result of my survey among the individual counsel for the defense. Counsel in question will go into these cases during the proceedings and in particular at the time of the closing statement.

The subjects are classified in the following manner:

1. General questions on public law and international penal law--Dr. Schilf.

2. Legislative--machinery and technique--myself [Dr. Kubuschok].

3. Relationship between judicial authorities and police--myself.

4. Relationship between judicial authorities and the Ministry of Propaganda and the news service in the Nazi State--Dr. Schilf.

5. System and structure of Reich Administration of Justice--Dr. Schilf.

6. Introduction of German law and German jurisdiction in the Protectorate and the Occupied Eastern Territories--myself.

7. Sovereignty of justice in the incorporated and occupied territories--myself.

8. German court organization, Special Courts and People’s Court--Dr. Brieger and Dr. Grube.

9. German criminal procedure--Dr. Doetzer.

10. Extraordinary objection--Dr. Grube.

11. Nullity plea--Dr. Schilf.

12. Retrospectiveness of penal laws and legal analogy--Dr. Aschenauer and Dr. Schilf.

13. Types of perpetrators--Dr. Schubert.

14. Military penal law--Dr. Koessl.

15. Independence of judges and directive measures--Dr. Aschenauer and Dr. Schilf.

16. Law of pardon--myself.

17. Execution of sentence--Dr. Marx.

18. Lynch law--Dr. Orth.

19. Sterilization and Euthanasia--Dr. Orth and myself.

20. Conspiracy and Control Council Law No. 10--Dr. Haensel, Dr. Doetzer, and Dr. Wandschneider.

May I now begin making my statement for the defendant Schlegelberger?

PRESIDING JUDGE BRAND: Do you have that in the translated form for us? We have it, thank you.

C. Opening Statement for the Defendant Schlegelberger[73]

DR. KUBUSCHOK: If, in my statement concerning the defense in general,[74] I have just pointed out that the administration of justice in the National Socialist State cannot be judged separately but must be judged in the light of the whole administration of the Reich and its head, the dictatorship, I shall have to refer thus in defending the defendant Schlegelberger again and again to his personality, quite apart from dealing with the objective facts as propounded by the prosecution in order to judge and interpret actions in their proper light.

Franz Schlegelberger was, after many years of service to both the administration of justice and the jurisprudence, already Under Secretary when Hitler came to power. He kept this position until August 1942 when Hitler, according to his pronouncements wanted to build up a National Socialist administration of justice. Schlegelberger had always been dealing with civil law. We will outline this, his activity, in general. When in January 1941 after the death of the Minister of Justice Guertner, he took over the administration of the Ministry of Justice as the then oldest Under Secretary according to rank, so to speak; only then did he, in this position, and to the extent of that position, have to deal with criminal cases.

If the prosecution on account of this, his position, has indicted him on these individual counts and included him in the common legal framework of conspiracy, the defense will first of all show that Control Council Law No. 10 does not provide a legal basis for an indictment of conspiracy to war crimes and crimes against humanity. My colleague, Dr. Haensel, responsible for the entire defense, has taken over this subject and will make the necessary statements and put forward motions. In addition, I, myself, will submit sufficient evidence to prove that with a person of Schlegelberger’s caliber, conspiracy and violent thinking are incompatible. I shall submit proof, as to his basic attitude during the whole of his tenure of office, that he could never have either favored or promoted principles of violent thinking, that on the contrary, all his activities were aimed at preventing or at least modifying the course set by Hitler’s dictatorship. We shall see, how he wrestled with the opposing forces of the Party, and how unequally distributed the powers were, and how his defensive attitude was breached but forcibly. We shall learn how much Hitler had always disliked the administration of justice and its expert administrators, and that, at a time, when not only the whole of the administration in Germany but also the entire public life, even to a certain extent private life, had already been “coordinated” and shaped according to National Socialist ideas. On 20 August 1942, he had to realize the fact that he had to build up a “National Socialist administration of justice.” Does this not constitute the truest judgment of Schlegelberger that he be judged by a man, who after all, was best qualified to judge? Is it not evident that the administration of justice under Guertner and Schlegelberger had done their utmost to face the avalanche? Is Hitler not best qualified to testify against the charges brought by the prosecution, namely that Schlegelberger had lent himself to the carrying out of National Socialist ideas of violence as personified by Hitler?

With this point of view in mind we shall have to judge the defendant Schlegelberger: A man, known to us only by his work, performed with integrity, and whose activities, viewed from National Socialist aspects, Hitler criticized in the above-mentioned way both in his Reichstag speech on 26 April 1942 and in his decree of 20 August 1942. Such a person has a right to point out: “The charges brought by the prosecution which superficially regarded, appear to be against me, and the charges that the prosecution has brought against me in order to incriminate me for my 10 years of service as Under Secretary cannot be judged as isolated facts and without considering motives but must be evaluated as a whole.” Thus, we will best be able to gain breathing space after the speech of the prosecution, which is necessary in order to reach impartial judgment and which culminates in the conclusion that Schlegelberger “had indeed played a prominent part in the destruction of German law,” a reproach which he rightly rejects: with which also the statement of the British Broadcasting Corporation on the occasion of his retirement from office in August 1942, namely, that with Schlegelberger, the last judge in Germany, had disappeared--is incompatible.

Schlegelberger, under secretary for civil law, certainly knew how to supervise the orphaned Ministry of Justice for a year and a half in an administrative capacity. The one who succeeded him, his appearance already threateningly forecast, and to the stemming of whose course Schlegelberger devoted his whole self, escaped judgment. The aspect of being the representative [Gesichtspunkt der Repraesentanz] which obviously has influenced the prosecution essentially, has to be disregarded.

We will also have to take the fact into account, that Schlegelberger’s position as interim administrator of the Reich Ministry of Justice, did by no means equal that of a minister. If, in spite of these hectic times when everything was being infected by the National Socialist virus, he succeeded in retaining the position taken over from Guertner, his decision alone to remain in office until the limits of what could normally be expected of anyone, certainly not an easy decision, would fully justify this step. Judging by his personality and studying in detail the real and true situation during those years we shall explain what really was behind the Rostock speech mentioned by the prosecution. Evidence will be offered as to Schlegelberger’s real relations with the Party and how this was evident in the policy he pursued concerning questions of personnel.

His attitude toward Hitler will be subject to a careful examination. We shall be unable to do justice to this task if we do not also acquaint ourselves with those who blindly followed Hitler, and rendered the task of Schlegelberger and prior to that, Guertner’s, so difficult. Freisler, his antipode, whom Hitler by entrusting him with all matters concerning criminal law had made into a guardian of National Socialist ideas within the Ministry of Justice and all the other party officials who hated the last bulwark of constitutional thought.

With reference to individual counts of the indictment I shall point out that as “seditious undermining of the military power” [Wehrkraftzersetzung], so-called passive defeatism only became a punishable offense in 1943, and it was precisely for this purpose that the competency of the People’s Court was established as per decree of 29 January 1943. The practice of seditious undermining of the military power, to which the indictment refers, therefore did not take place until Schlegelberger’s retirement. At the time of Schlegelberger’s tenure of office these cases of defeatism were judged according to the Insidious Statement Law [Heimtueckegesetz] and were not punishable by death but by a maximum penalty of 5 years’ imprisonment. The extension of the German criminal jurisdiction to include crimes committed abroad as well was practiced before Schlegelberger took over the administration.

I shall deal in detail with the legal question of the extension of German law to the occupied territories and I shall throw some light on the origin and the application of the ordinance concerning crimes of Poles and Jews. I shall show by means of the documents already submitted by the prosecution what demands were made by the Party concerning the treatment of the Poles and Jews and how these requests were opposed by law and in practice. Schlegelberger’s general attitude toward the Jewish question will be the subject of the discussion.

Even if the prosecution connects the defendant Schlegelberger with the extradition to the police of so-called asocial persons as well as of Poles and of Jews, the defense will prove that those orders were only given according to an agreement made between Himmler and Thierack in September 1942. Previous, special cases only concerned direct orders by Hitler given to the police and which could not be prevented by the administration of justice. We shall see that the police had started during the time of Guertner to remove prisoners from the prison by command of Hitler if Hitler considered the sentence passed during the criminal proceedings, a too mild one. Only in order to prevent this if possible or at least to restrict it did Guertner insist that he be informed of this order at the same time as were the police. It was only because of that request that the administration of justice dealt with these matters at all. It will be proved that everything possible was done in order to prevent extraditions to the police.

I shall also speak of the practice of granting pardons and find here also a confirmation of Schlegelberger’s general attitude.

The indictment also deals with the so-called euthanasia. We shall see that Schlegelberger opposed the carrying out of the euthanasia program soon after taking over the administration. He obviously succeeded, for we shall establish that the measures were stopped in August 1941 and were only started again at the time of Thierack as can be seen from the meeting described by the witness Suchomel.

Concerning sterilization, we shall offer abundant evidence to prove that the practice of the courts for protecting the hereditary health of the German people was unobjectionable, that those courts had examined conscientiously whether evidence as to the facts required by the law had been submitted and especially sterilization for political or racial reasons was never decreed. I shall produce a witness to show that this procedure had been carried out in an unobjectionable way, even where Jews were concerned.

Regarding the question of the Night and Fog cases, it will be explained for what reasons and with which results the Night and Fog cases were taken over by the general courts. It also will be set forth what regulations were in force up to the date of Schlegelberger’s retiring from office. The extent and the consequences of restricting the proceedings necessitated by maintaining secrecy will be explained.

By submitting documents I shall present evidence about the political development of the National Socialist State and the structure of its administration. I shall present documents referring to legal provisions and their explanations concerning the questions raised by the prosecution. Finally, I shall submit several affidavits which deal with certain questions and help to form a judgment of Schlegelberger’s entire personality. I shall produce a witness for the political and administrative conditions in the National Socialist State. Another witness will, as already mentioned, give evidence on the practice of the courts for the protecting of hereditary health of the German people and on general questions regarding sterilization. Finally, I shall name as witness the personal Referent of the defendant who for many years held this position up to the time of Schlegelberger’s retirement from office, and who by virtue of his knowledge gained through professional and personal experience will be able to give evidence on numerous questions which have to be discussed.

D. Opening Statement for Defendant Klemm[75]

DR. SCHILF: May it please the Tribunal. By way of introduction, I should like to call attention to the fact that the indictment also clearly implies with regard to my client Herbert Klemm that, permeated as he was with National Socialist convictions, his one endeavor was to realize, by judicial methods and throughout the judicial field, the aims of National Socialist despotism. The indictment also, indeed, implies that he was acquainted himself from the start in detail with the great extent of these aims. The prosecution has tried, in connection with each action and with each event that came to light anywhere in the files, to refer everything with which my client was concerned back to that fundamental conception. Yet in my opinion the prosecution does not make any effort to embark upon proof that the defendants had come to a mutual agreement in their own minds, such as must constitute the prerequisite for the conspiracy of justice, for the furtherance of the Hitler regime as alleged by the indictment. Instead, the prosecution is content to trace in every statement and every action simply a sign of malicious intent and bad faith without stopping to consider how such actions are to be estimated in the light of historical development and within the limits of the phenomenon as a whole and the practical possibilities. Just as the indictment desires to see in the legislative power [Rechtsschoepfung] conferred upon the judge by the alteration of paragraph 2 of the German Criminal Code an example of the judicial intention to try cases unrestrictedly and arbitrarily, without attention to legal guaranties, so also my client Klemm is credited with completely false motives in detail. Just as it will be proved by the defense that such legislative power for the judge had already been planned, long before 1933, in draft proposals for reform, with the object of creating the necessary synthesis between merely codified law and the actual development of law through the giving of legal judgments, so also shall I show, in my defense of the defendant Klemm, in general, that he, too, was concerned, in his measures, with the preservation of real justice. Reference will therefore inevitably be made to the background of historical development behind the measures with which he is charged, to the related points in the German legal system, and to the actual distribution of power existing during the Hitler regime. In this connection a great deal will depend on the view that is taken of his position, his potential influence and the limits of his authority.

In particular, I shall divide the subject matter of my proof into sections.

In the first place, it will be necessary to begin with the fact that, outwardly, the defendant Klemm has to bear a certain amount of odium: he had joined the NSDAP before it took over power, and he remained in it until the capitulation; he was at first Oberstaatsanwalt and Ministerial Councilor in the Reich Ministry of Justice, he was chief of liaison with the SA and reached high rank in that organization, he was a group leader in the Party Chancellery, and he was finally to become Under Secretary in the Reich Ministry of Justice, the last position he held, and a personal friend of and very close collaborator with Thierack, the Minister. The indictment evidently intends, by giving this outward impression, to exhibit Klemm as a man who considered justice to be a means, and treated it as a means, to exclusively political ends. I shall prove that this was not the case. In order to demonstrate the seeming contradiction between outward appearance and actual private character, I consider it my duty to give the Tribunal a comprehensive picture of the personality of my client as a jurist and as a man. It will become evident that he was and remained a simple and straightforward person, even after he rose higher in his career, that he was a man of sensitive disposition and refined feeling and always endeavored to act objectively and above all justly. I shall therefore have to ask my client to explain in the witness box the ideas he had conceived as to the aims of the NSDAP, the hopes he had before him in the legal and political field, and the way in which he believed it possible that the political intentions of the leadership of the state could be combined with the idea that law has to prevail. He will have to explain to the Tribunal how many things he actually did not know in order to enable us to gain an accurate picture of the situation at that time and of the developments.

So far as the separate phases of the activity of the defendant Klemm are concerned, it must be said--

The indictment takes as the first phase his activity as Oberstaatsanwalt and Ministerial Councilor in the Reich Ministry of Justice. The two charges specially raised against him in this field are concerned with the so-called “more severe interrogations” through organs of the Gestapo and with the fact that he was the Ministry’s chief of liaison with the SA. I shall prove that it was not the duty of the defendant to suggest in certain cases “more severe interrogations,” in other words, maltreatment of prisoners by the Gestapo. It was, on the contrary, his duty to prosecute such cases through criminal proceedings, since also the Gestapo and its organs were prohibited from ill-treating prisoners. In this connection I shall be able to take the opportunity to describe the attitude of my client by reference to the documents which were submitted in the IMT trial. It was the defendant Klemm who as an official in the Ministry of Justice of Saxony suggested the strict prosecution which was made so much of both in indictment and in the judgment given in the IMT trial of those SA men who had rendered themselves guilty of ill-treatment of prisoners in the concentration camp at Hohenstein in Saxony. There is no ground for the assumption that Klemm’s attitude changed at a later date, when he worked in the Reich Ministry of Justice.

The position of a chief of liaison between the Ministry and the SA leaders will be described by me through reference to the documents. The judiciary as a public authority, had the duty to inform the SA leaders of any prosecution or condemnation of a member of the SA. It was the purpose of such information to give the SA leaders the possibility of removing criminal elements from their ranks. This purpose was known to the Reich Ministry of Justice. The chief offices of both organizations had to exchange information and experience and were obliged to ascertain in which special cases they had to be interested. It was necessary to appoint a special Referent for this purpose, merely in order to simplify the handling of these matters. This post was filled by my client Klemm, since he was simultaneously both a member of the SA and of the Ministry of Justice. I hope, indeed, to prove with special effect that it was absolutely opposed to Klemm’s conception of his office as such a liaison chief to suppress criminal proceedings against SA members or protect them against prosecution, but that on the contrary he thought it necessary to support vigorously the interests of justice against the SA leaders. An individual case will give me the opportunity to demonstrate how also in this field Klemm was guided by legal consideration alone, and this individual case will be symptomatic of the attitude of my client.

In order to be able to judge correctly the activity of my client in the Party Chancellery, I consider it my duty to describe first of all the sphere of work and problems with which the Chancellery itself had to deal. This seems to me all the more necessary, as evidently completely false ideas of this organization are prevalent. I shall therefore have to show that by reason of legal regulations the latter had to take part in all the legislative and administrative work done by the Ministry of Justice and that it was not simply an office that carried out tasks concerned purely with Party politics. In the constitutional structure of the Third Reich, the Party Chancellery had to perform public functions. I may already at this point draw the attention of the Tribunal to the fact that my client is not affected by count four of the indictment, in spite of the fact that he was employed in the Chancellery of the Party. It is indeed a significant indication that the prosecution has formed an incorrect view of the Party Chancellery, if an official could be employed there who did _not_ belong to the corps of leaders of the Party.

An explanation of the bureaucratic structure of the Party cannot be avoided; its division into separate departments and groups will have to be described. The defendant Klemm was at the head of only a subordinate group in the Party Chancellery. Its number was IIIc. I would ask the Tribunal to be so good as to take due note of this number IIIc in my speech for the defense, so far as the latter is concerned with the Party Chancellery, and also when I come to explain the documents relative to the Party Chancellery. My client was employed exclusively in this legal group. This outward sign alone is an important circumstance to be considered in arriving at a correct estimate of the work of my client. The special task of this Group IIIc was to deal with all matters which affected law, codification, and the administrative work of the Ministry of Justice. The officials in this legal group remained, as did Klemm also, officials of the Ministry of Justice; they were merely delegated by that ministry. They also therefore represented in the Party Chancellery the idea of justice and the concerns of _their own_ ministry. Whenever different questions were raised in Group IIIc, for example, questions as to the legal disposition of the affairs of foreign peoples, a different department or group of the Party Chancellery dealt officially with and decided upon the matter. Owing to this restriction of the field of their work the legal group could only raise objections against the treatment of any matter in another department if formal questions were handled. The legal group had no right of appeal if a matter had been decided on principle by other groups. Thus, it will be shown that the decree about penal law with regard to Poles was not dealt with or decided upon in Klemm’s legal group but in Group IIIa of the Party Chancellery, which was concerned with questions on ethnic origin [Volkstumsfragen]. The defendant Klemm, therefore, could not exercise any influence whatever, during the period of his employment in the Party Chancellery, on the provisions of this law.

Through further evidence it will be made clear that Klemm’s position in the Party Chancellery, as a consequence of the latter’s special method of working, could only have slight influence on decisive matters. Really important affairs concerned with politics or both politics and law, so far as they may interest the Tribunal and the prosecution, were not handled by the legal group headed by Klemm.

The officials of the Party Chancellery, so far as they were group leaders, had no influence whatsoever on politics. On the contrary, this was done by the Party’s own office. The latter had no state functions as had the Party Chancellery. The NSDAP had offices for agricultural policy, people’s welfare, people’s health, a national legal office, an organization of Germans living abroad, and many more. There the political principles were planned, there the influence was exercised that found expression in the sentence: “The Party gives orders to the State.” All these offices of the NSDAP must be separated clearly from the Party Chancellery with its function of a public nature. These Party offices transmitted their plans through the competent “Reichsleiter” directly to Hitler as the Party leader and head of State.

Also the position of Bormann must be explained. He also had a variety of offices and functions as Reich leader, secretary of the Fuehrer, and leader of the Party Chancellery. At the time when Klemm was working in the Party Chancellery, Bormann was regularly in the Fuehrer’s headquarters and thus away from Munich. All important questions of a general nature, also those affecting justice and its policies and organizations went directly to Bormann in the Fuehrer’s headquarters. There Bormann himself ordered that most of the matters be handled at once. In such cases Klemm’s legal group often received no information at all of his decision, or at the most a copy subsequently. When Bormann transferred a job to the legal group in Munich he included as a rule instructions for the handling of the matter. When things were handled in this way by Bormann no objections could be raised. Moreover, the evidence I will produce will destroy the rumor that my client had close contact with Bormann. They disliked each other very much. The main reason was that Klemm did not accede willingly enough to the wishes of Bormann. It occurred only very rarely that Klemm reported to Bormann. To a much greater extent than other subdepartment heads of the Party Chancellery, Klemm also informed Bormann about his own point of view.

After I shall have tried to clarify the unclear and dark picture of the Party Chancellery, I shall discuss in detail the _working method_ of my client and I will outline in what matters he participated and how far he is, therefore, responsible and in what matters he did not participate.

(_a_) A series of documents submitted by the prosecution carry the dictation symbol of Bormann; I shall show that all these documents can have nothing to do with my client, Klemm. They were prepared solely by Bormann and his staff at the Fuehrer headquarters. No copy was sent to the Party Chancellery at Munich, so that the legal group never received any knowledge of them. This is the reason why it is so important to draw attention to the symbol of the legal group, namely, IIIc. Klemm neither prepared, nor had any knowledge of, any letters of the Party Chancellery which do not bear this file number. Just as an example I mention Thierack’s letter to Bormann on the collaboration of the judicial authorities in the extermination of Poles, Jews, and gypsies (_NG-199, 199A, Pros. Ex. 243_). As “Top Secret Reich Matter” this writing never reached section IIIc of the Party Chancellery.

(_b_) I will show that the defendant cannot be held responsible for a possible crime in which the huge organization of the Party Chancellery may have been involved, but not the defendant, if he had never participated in the planning, and if he could never have received information about it. It is my opinion that this is also not possible by using the concept of conspiracy or the broadly defined forms of participation according to the Law No. 10 of Control Council. Such a reasoning is not possible especially if I will prove how strongly Klemm advocated--especially in the Party Chancellery--the idea that law has to prevail in a state, and how he tried to prevent that Party organs be influenced in any unfavorable way. Every day the Group IIIc received complaints against the justice, the judges, and against the offices of the administration of justice which wanted to influence pending proceedings or even to change sentences which had already been passed. Work in connection with such complaints made up the biggest part of the working time of this group. In all these cases the complaints were rejected by stating that the judge is independent. I shall submit evidence to show that the Party Chancellery, particularly Group IIIc, expressly forbade all political leaders (that is, the Fuehrer Corps of the NSDAP) to interfere in the jurisdiction. It will be demonstrated that this circular decree was issued on Klemm’s initiative. I shall disprove the assertion of the prosecution and shall show that my client advocated emphatically the punishment of Party members who were found guilty of an offense. Accordingly, Klemm did not use his position in the Party Chancellery to keep justice under pressure but on the contrary tried to promote the interests of justice and the idea that law has to prevail in a state. In the year 1941, for example, he succeeded in persuading Bormann in a memorandum to reject the plans of Himmler, who attempted already at that time to transfer the jurisdiction over the Poles to his police.

(_c_) The documents submitted by the prosecution, so far as they really affect the legal group of the Party Chancellery, will not be able to invalidate my above assertions. When I will submit the evidence for the defense I will have the opportunity to explain the purpose and the context of these documents. It will be possible to correct many misinterpretations.

In this connection it seems to be necessary to explain briefly the fact that Klemm’s influence in the Party Chancellery was never so great that it could have played any part in the appointment of Thierack to Minister of Justice in the year 1942. Many a person who could not know the actual events and their background may have had some fantastic ideas in this respect. The explanations of the defense will destroy these conceptions.

(_d_) With regard to the activity of my client as Under Secretary in the Reich Ministry of Justice, it will be the task of the legal presentation to separate those actions and measures for which he is responsible from those for which he is not responsible. Also with regard to this point I shall emphasize my point of view that on basis of Law No. 10 of the Control Council, my client cannot be held responsible for what he himself did neither instigate nor approve. In order to be able to find the facts which will serve as the basis for such legal arguments, I must give you during the proceedings of evidence a detailed picture of my client’s position as Under Secretary, of his working field, and of the extent of his personal influence. Even externally the position of the Under Secretary had changed considerably since the appointment of Thierack. While before this time the Under Secretary in the Ministry of Justice stood on principle between a section chief and the minister, after that time his function declined to the extent of being a figure [figurehead] beside the minister. Formerly the Under Secretary had a broad working field and had authority to make important decisions himself, and only the most important matters reached the minister himself, such as bills or critical matters with regard to policies of the State and of justice. Thierack himself on the other hand, handled all matters with regard to the administration of penal law which the section chief was not permitted or did not want to decide, and he degraded the under secretary to a position in which the latter could merely give his opinion like any other expert. It is correct, that from an external point of view the working field of my client seemed to be greater than that of his predecessor, Dr. Rothenberger. The sections of Ministries III (legislation in the sphere of criminal law), IV (administration of criminal law), and V (execution of sentences), which were not under the latter’s jurisdiction were formally reassigned to Klemm. This seeming extension--my client was thus practically in charge of the whole Ministry of Justice with all its main sections but with the exception of section XV (section for secret matters) which was already in the process of dissolution--actually resulted in a curtailment of his executive powers. Only in a limited field did he receive the authority to make independent decisions, namely as chief of section II, which was concerned mainly with educational problems and whereby Klemm was entitled in personnel matters to propose appointment and promotion of officials up to the grade of Landgerichtsdirektor and officials of equivalent rank. In all other fields he was subjected to the domineering orders of the minister in the same way as every other official of the Ministry. Although he could call for the report of an expert and could thus bring a matter to be decided within his sphere, he was prevented from doing so if the minister himself reserved the final word for himself. Through presentation of my evidence it will be made clear how Thierack, because of his previous career, directed his interest, perhaps his only interest, to problems of criminal law and execution of sentences.

Thus, we will recognize that the above-mentioned main sections of the Ministry were only formally under the jurisdiction of Klemm and that no change “in the line of the direction of justice,” as Thierack expressed it in a discussion of the section leaders on 7 January 1944 (_NG-195, Ex. 45_) resulted from the appointment of a new Under Secretary. It will be proved through the evidence how little the Under Secretary could care for other sections, and that because of the external circumstances, as for instance the evacuation of whole sections from Berlin, he was only rarely present at conferences with the minister or was left out intentionally.