Chapter LXXIV: Section VII: of the secret decree declares that the directives will (1)

become effective 3 weeks after they are signed and that the directives will be applied in all occupied territories with the exception of Denmark until further notice. The orders issued for the newly occupied Eastern territories are not affected by these directives. The order was expressly made effective in Norway, Holland, France, Bohemia, Moravia, and the Ukraine occupied areas. In actual operation, Belgium and all other of the western occupied countries came within the decree.

The Hitler decree was sent to the Reich Minister of Justice on 12 December 1941 endorsed for the attention of defendant Schlegelberger. On the same day (12 December 1941) Keitel informed other ministries of Hitler’s decree, directing that all such information proceedings were to be conducted in absolute secrecy.

On 16 December 1941, officials of the Ministry of Justice (Schaefer and Grau, associates of defendant Mettgenberg in Department III) drafted a proposed order for the execution of the Hitler NN decree by the Ministry of Justice, the courts, and the Reich prosecution. This was forwarded to General Lehmann, head of the OKW legal department for his approval.

Other correspondence took place between the Reich Ministry of Justice and the OKW relating to the final draft of the Night and Fog order. This correspondence occurred between 16 December and 25 December 1941. It related to the reservation of the competency of the Ministry of Justice or Under Secretary of State Freisler in the execution of the Hitler decree. These reservations were incorporated in a circular decree dated 6 February 1942, supplementing NN regulations as follows (_NG-232, Pros. Ex. 308_):

“Circular Decree:

“On the execution of the executive decree of 6 February 1942,
relating to the directives issued by the Fuehrer and Supreme
Commander of the Wehrmacht for the prosecution of criminal
acts against the Reich or the occupation power in the occupied
territories.

“For the further execution of the directives mentioned before I
ordain:

“1. Competent for the handling of the cases transferred to
ordinary courts including their eventual retrial are: the
Special Court and the chief prosecutor in Cologne as far as they
originate from the occupied Belgian and Netherlands territories,
the Special Court and the chief prosecutor in Dortmund; as far
as they originate from the occupied Norwegian territories, the
Special Court and the chief prosecutor in Kiel; for the rest,
the Special Court and the attorney general at the county court,
Berlin. In special cases I reserve for myself the decision of
competence for each individual case.

“2. The chief prosecutor will inform me of the indictment, the
intended plea, and the sentence as well as of his intention to
refrain from any accusation in a specific case.

“3. The choice of a defense counsel will require the agreement
of the presiding judge who makes his decision only with the
consent of the prosecutor. The agreement may be withdrawn.

“4. Warrants of arrests will be suspended only with my
consent. If such is intended, the prosecutor will report to me
beforehand. He will furthermore ask for my decision before using
foreign evidence or before agreeing to its being used by the
tribunal.

“5. Inquiries concerning the accused person or the pending trial
from other sources than those Wehrmacht and police agencies
dealing with the case will be answered by merely stating that
* * * is arrested and the state of the trial does not allow
further information.”

This supplementary decree was signed for Dr. Freisler by chief secretary of the ministerial office.

The letter of the same Dr. Freisler to Minister of Justice Thierack dated 14 October 1942, shows that in accordance with his promise to Thierack he had conducted preliminary proceedings through Reich departmental officials and with Lehmann, Chief of the Legal Division of the OKW, concerning the matter of the Ministry of Justice taking over the Night and Fog proceedings under the Hitler decree. Such top secret negotiations had lasted for several months. The last conference was held on 7 February 1942. On that day the final decree was drafted, approved, and was “the decree of 7 February 1942, signed by Schlegelberger” as Acting Minister of Justice. Defendant Schlegelberger testified that he signed the decree. He thereby brought about the enforcement by the Ministry of Justice, the courts, and the prosecutors of a systematic rule of violence, brutality, outrage, and terror against the civilian population of territories overrun by the Nazi armed forces resulting in the ill-treatment, death, or imprisonment of thousands of civilians of occupied territories.

The taking over of the enforcement of the Hitler NN decree was based solely upon the afore-mentioned secret agreement, plan, or scheme. All of the defendants who entered into the plan or scheme, or who took part in enforcing or carrying it out knew that its enforcement violated international law of war. They also knew, which was evident from the language of the decree, that it was a hard, cruel, and inhumane plan or scheme and was intended to serve as a terroristic measure in aid of the military operations and the waging of war by the Nazi regime. We will at this point let some of those who originated the plan or scheme or who took part in its execution relate its history and its illegal, cruel, and inhumane purposes.

Rudolf Lehmann, who was Chief of the Legal Division of the OKW, testified concerning the Nacht und Nebel Decree of 7 December 1941. He stated that even before the beginning of the war and more particularly after the beginning of the war, there was a controversy between Hitler and his generals on the one part and between Hitler and the Gestapo on the other part as to the part which should be performed by the military department of justice. He testified:

“Hitler held it against the administration of justice by the
armed forces and within the armed forces that they did not
sufficiently support his manner of conducting the war.”

He further testified that Hitler had--

“Used the expression that the military justice indeed sabotaged
his conduct of war. These reproaches first emanated from the
Polish campaign. There the military justice--the justice
administration of the armed forces--was reprimanded that it had
not acted sufficiently severe against members of bands. The next
reprimands of that kind occurred during the French campaign.”

Lehmann further testified that Keitel had passed on to him a directive which he had received from Hitler in October of 1941. This directive was quite long in which Hitler referred to the resistance movement in France, which he stated was a tremendous danger for the German troops and that new means would have to be found to combat this danger.

There was therefore a discussion of the resistance movement. The army was opposed to the plan because it involved them in violations of international law of war. It was then suggested in the discussion that the Gestapo should be given that power. But even in this Hitler’s ideas were overruled. It was at this point that he, Lehmann, suggested that the matters--

“Should continue to be dealt with by judges, and since the
aversion of Hitler against the armed forces justice was known,
it could be assumed that he would still prefer civilian courts
than us.”

Lehmann further testified that Hitler--

“Attributed a higher political reliability to civilian justice
later because later he took all political criminal cases away
from us and gave it to civilian justice.”

At this point Lehmann discussed the matter with Under Secretary Freisler because Freisler dealt with the criminal cases in the Ministry. He was told by Freisler that the matter would have to be taken up with Schlegelberger. Lehmann further testified:

“I discussed with him the proposition that the cases which
the military courts in France would not keep should be taken
over and dealt with by and tried by the civilian justice
administration. I can only say that Freisler told me that first
he had to think it over; and secondly, he had to discuss it with
Under Secretary Schlegelberger who was at that time in charge of
the Ministry. * * * Freisler told me that he had to ask the man
who was in charge of the Ministry, the acting minister * * * for
permission and authority on behalf of the Ministry of Justice
to try the Nacht und Nebel cases. * * * As I was informed about
the routine in the Ministry, Schlegelberger, who was then acting
Minister of Justice, was in my opinion the only person who could
consent to take over these Nacht und Nebel cases by the Ministry
of Justice.”

Lehmann further testified:

“I have stated that * * * the plan had to be rejected for
manifold reasons--for reasons of international law, for reasons
of justice, and policy of justice, and primarily, because I
said the administration of justice should never do anything
secretly. I put to him, ‘What kind of suspicion would have to
arise against our administration of justice if these people,
inhabitants of other countries, brought to Germany, would
disappear without a trace’? In my mind, and in the minds of all
others concerned, everything revolted against this particular
part of the plan, which seemed to us to have much more grave
consequence than the question of who should, in the end, deal
with it. That was also the opinion of the leading jurists of the
armed forces * * *.”

Defendant Mettgenberg held the position of Ministerialdirigent in Departments III and IV of the Reich Ministry of Justice. In Department III, for penal legislation, he dealt with international law, formulating secret, general, and circular directives. He handled Night and Fog cases and knew the purpose and procedure used in such cases, and that the decree was based upon the Fuehrer’s order of 7 December 1941 to the OKW. In his affidavit Mettgenberg states (_NG-696, Pros. Ex. 336_):

“The ‘Night and Fog’ section within my subdivision, was headed
by Ministerial Counsellor von Ammon. This matter was added to
my subdivision because of its international character. I know,
of course, that a Fuehrer decree to the OKW was the basis for
this ‘Night and Fog’ procedure and that an agreement had been
reached between the OKW and the Gestapo, that the OKW had also
established relations with the Minister of Justice and that the
handling of this matter was regulated accordingly.

“I was not present at the original discussion with Freisler,
in which the ‘Night and Fog’ matters were first discussed on
the basis of the Fuehrer decree. If I had been present at this
discussion, and if I had had an occasion to present my opinion,
I would, at any rate, have spoken against the taking over of
the ‘Night and Fog’ matters by the justice administration.
It went against my training as a public servant to have the
administration of justice misused for things which were bound to
be incompatible with its basic principles.

“Whenever Mr. von Ammon had doubts concerning the handling of
individual cases, we talked these questions over together,
and when they had major importance, referred them to higher
officials for decision. When he had no doubts, he could decide
all matters himself. We got these cases originally from the
Wehrmacht and later from the Gestapo. The distribution of these
cases to the competent Special Courts or to the People’s Court,
von Ammon decided independently. Von Ammon also had to review
the indictments and sentences and to obtain the minister’s
decision concerning the execution of death sentences. The
question posed by the exclusion of foreign means of evidence
was a legal problem of the first order. Since it had been
prescribed from above, the Ministry of Justice had no freedom of
disposition in this matter. This is another one of the reasons
why we should not have taken over these things.”

Defendant von Ammon was ministerial councillor in Mettgenberg’s subdivision in charge of the Night and Fog matters. The two acted together on doubtful matters and referred difficult questions to competent officials in the Reich Ministry of Justice and the Party Chancellery, since both of these offices had to give their “agreement” in cases of malicious attacks upon the Reich or Nazi Party, or in Night and Fog cases, which came originally from the Wehrmacht, and later from the Gestapo, and jurisdiction of which were assigned to Special Courts at several places in Germany and to the People’s Court at Berlin by defendant von Ammon. In his affidavit he states (_NG-486, Pros. Ex. 337_):

“The decree of 7 February 1942, signed by Schlegelberger,
contained, among others, the following provisions: Foreign
witnesses could be heard in these special cases only with the
approval of the public prosecutor, since it was to be avoided
that the fate of NN prisoners became known outside of Germany.

“The presiding judges of the courts concerned had to notify
the public prosecutor if they intended to deviate from their
notion for a sentence. Freisler noted in this connection that
this constituted the utmost limit of what could be asked of the
courts. The special nature of this procedure made it necessary
to make such provisions.

“Later, when Thierack entered the Reich Ministry of Justice, he
changed the decree in such a manner that the courts no longer
had to declare their dissenting views to the public prosecutor,
but that the acquitted NN prisoners or those who had served
their sentences had to be handed over by the court authorities
to the Gestapo for protective custody. Under Secretary of State
Schlegelberger himself was not present at the conference, but
Under State Secretary Freisler left the conference briefly in
order to secure the signature of Schlegelberger.

“I must admit that, in dealing with these matters, I did not
particularly feel at ease. It was my intention to get the best
out of this thing and to emphasize humanitarian considerations
as much as possible in these hard measures. I have seen from the
first Nuernberg trials that the court has declared the ‘Night
and Fog’ decree as being against international law and that
Keitel, too, declared that he had been aware of the illegal
nature of this decree. Freisler, though, represented it to us in
such a manner as to create the impression that the decree was
very hard but altogether admissible.”

Mettgenberg and von Ammon were sent to the Netherlands occupied territory because some German courts set up there were receiving Night and Fog cases in violation of the decree that they should be transferred to Germany. They held a conference at The Hague with the highest military justice authorities and the heads of the German courts in the Netherlands, which resulted in a report of the matter to the OKW at Berlin, which agreed with Mettgenberg and von Ammon that--

“The same procedure should be used in the Netherlands as in
other occupied territories, that is, that all Night and Fog
matters should be transferred to Germany.”

With respect to the effectiveness and cruelty of the NN decree, the defendant von Ammon commented thus:

“The essential point of the NN procedure, in my estimation,
consisted of the fact that the NN prisoners disappeared from the
occupied territories and that their subsequent fate remained
unknown.”

The distribution of the NN cases to the several competent Special Courts and the People’s Court was decided upon by defendant von Ammon. A report of 9 September 1942, signed by von Ammon, addressed to defendant Rothenberger, to be submitted to the Minister of Justice and the defendant Mettgenberg, stated that there are pending in Special Courts Night and Fog cases as follows: At Kiel, nine cases with 262 accused; at Essen, 180 cases with 863 accused; and at Cologne, 177 cases with 331 accused. By November 1943 there were turned over at Kiel, 12 cases with 442 accused; at Essen, 474 cases with 2,613 accused; and at Cologne, 1,169 cases with 2,185 accused.

A note dated Berlin, 26 September 1942, for the attention of defendant Rothenberger, signed by defendant von Ammon, stated that by order of the Reich Minister the hitherto--

“Exclusive jurisdiction of the Special Courts over NN cases is
to some extent to be replaced by the People’s Court of justice.”

A letter dated 14 October 1942 to Minister of Justice Thierack from Freisler, then president of the People’s Court, states that he understood that a conference held on 14 October 1942 extended the jurisdiction of the People’s Court over NN cases. Freisler states that he conducted the preliminary proceedings with Ministerial Director Lehmann of the OKW with regard to the Ministry of Justice taking over the Night and Fog proceedings. He explains that the Night and Fog proceedings were top secret and no file or records were made in order to be quite sure that under no circumstances should any information be obtained by the outside world with regard to the fate of the alien prisoners. He also emphasizes the fact that under no circumstances could any other sentence than the one proposed by the public prosecutor be passed and to make sure of this in the technical routine it was decided that--

“1. The prosecutor should be entitled to withdraw the charges
until the pronouncement of the sentence.

“2. The court was to be instructed to give the prosecutor
another chance to give his point of view, in case their view
should diverge from his.”

Freisler further states:

“In fulfillment of my promise I deemed it necessary to inform
you of this, dear sir, as these facts were not permitted to
be recorded in the files and are probably unknown in the
department.”

By his supplemental directive of 28 October 1942, Thierack made note of the fact that the “jurisdiction of the People’s Court (No. 1, 1 and 2 of the additional circular directives of 14 October 1942)” had been extended to NN cases. Thierack’s letter, dated 25 October 1942 to defendant Lautz, copy to von Ammon, established and expanded jurisdiction of the People’s Court over NN cases.

Thereafter the People’s Court handled many Night and Fog cases, convicting the accused in secret sessions with no records whatsoever made of any evidence adduced and no record was made of the sentence pronounced. The defendant von Ammon testified that about one-half of the Night and Fog prisoners tried by the People’s Court were executed.

Later NN cases were sent to German Special Courts at Breslau and Katowice, Poland, and to Silesia and other places as will be shown herein.

_Concentration Camps_

The use of concentration camps for NN prisoners was shown by a letter dated 18 August 1942, signed by Gluecks, SS Brigadefuehrer and General Major of the SS, which contained enclosures for information and execution by officials in charge of concentration camps, including Mauthausen, Auschwitz, Flossenbuerg, Dachau, Ravensbrueck, Buchenwald, and numerous others. The letter states that such prisoners will be transferred under the Keitel decree from the occupied countries to Germany for transfer to Special Courts. Should that for any reason be impossible, the accused will be put into one of the above-named concentration camps. Those in charge of the camps were instructed that absolute secrecy of such prisoners’ detention was to be maintained including the prevention of any means of communication with the outside world either before or after the trial.

The following is illustrative of inhumane prison conditions for NN prisoners. The affidavit of Ludwig Schirmer, warden in the prison at Ebrach, confirmed by his oral testimony, states:

“The Ebrach prison which was used for criminal convicts had a
capacity of 595 prisoners. In 1944, however, the prison became
overcrowded and finally held a maximum of from 1,400 to 1,600
prisoners in 1945.

“This crowding had been caused by numerous NN prisoners from
France and Belgium. Among them was the French General Vaillant
who died in the prison of old age and of a heart disease. Owing
to the overcrowding of the penitentiary, it was impossible to
avoid the frequent outbreak of diseases, such as pulmonary
tuberculosis, consumption, and, of course many cases of
undernourishment. The very poor medical care was a serious
disadvantage; the doctor showed up only two or three times a
week. Sixty-two inmates died during the last months of the war.
Many of them, of course, came in already sick. During the last
months, a criminal convict was employed as physician. He was a
morphinomaniac and a man of very low character.

“Although there were stocks of food at hand, the feeding of
prisoners was bad; people got only soup and turnips for weeks.
NN prisoners were crowded together, four in a single cell. From
time to time a certain number of the prisoners was transferred
to the concentration camp.”

The affidavit of Josef Prey, head guard at the Amberg prison, confirmed by his oral testimony, states that foreigners, Jews, and NN prisoners at Amberg prison, which had a capacity of 900 to 1,100 were incarcerated there. Yet shortly before the collapse there were 2,000 prisoners of whom 800 to 900 prisoners were Polish, and NN prisoners who included Frenchmen, Dutchmen, and Belgians. From time to time by secret decree prisoners were transferred to the concentration camps at Mauthausen. Defendant Engert, the official representative of the department of justice, visited and officially inspected the prison and knew of these conditions.

By his affidavit Engert states that Thierack told him the Night and Fog prisoners had to be treated with special precaution, not allowed any correspondence, locked up hermetically from the outer world, and that care should be taken that their real names remain unknown to the lower prison personnel. Engert further states that these orders were the result of the Fuehrer decree of 7 December 1941 and that Thierack told him the Night and Fog prisoners were accused of resistance and violence against the armed forces. He did not know what became of these NN prisoners at the various prison camps. He did know that an agreement existed with the Gestapo that the bodies of Night and Fog prisoners should be given to them for secret burial. It was shown by other testimony that defendant Engert was ministerial director, who handled and investigated the Night and Fog prisoners and that he was in charge of the task of transferring prisoners and knew their nationality and the character of crime charged against them.

On 14 June 1944 defendant von Ammon wrote Bormann, Chief of the Party Chancellery, a letter sent by way of defendant Mettgenberg, requesting permission of the Fuehrer to inform NN women held under death sentence of the fact that such sentence has been reprieved, since he considers it to be unnecessarily cruel to keep these “condemned women” in suspense for years as to whether their death sentence will be carried out.

Mrs. Solf, the widow of a former distinguished German cabinet officer and ambassador, testified that she was tried and held as a political prisoner of the Nazi regime for several years in Ravensbrueck concentration camp and other prisons where a large number of foreign women were imprisoned. Concerning the ill-treatment of these women and the prison conditions under which they were incarcerated, Mrs. Solf testified:

“As to the prisoners who were with me at Ravensbrueck, as far
as I can remember there was only an Italian woman of Belgian
descent who was treated well, better than we were. However, in
the penitentiary of Cottbus, as well as in the prison of Moabit,
I met many foreigners. In the penitentiary of Cottbus, there
alone were 300 French women who were sentenced to death, and
five Dutch women sentenced to death who after a week or two were
pardoned to penitentiary terms and whom

I saw in the courtyard. The 300 French women sentenced to death
were sent to Ravensbrueck at the end of November 1944. The night
before they were transported they had to sleep on a bare stone
floor. One of the auxiliary wardens, who was also an interpreter
for them and who had a great deal of courage and a kind heart,
came to me in order to ask us political prisoners to give them
our blankets, which we certainly did.”

She further testified:

“I know and have seen for myself that, for instance, in Moabit,
some of the brutal wardens kicked them and shouted at them for
reasons which seemed very, very unjust because these women did
not understand what they were supposed to do.”

The Night and Fog decree was from time to time implemented by several plans or schemes, which were enforced by the defendants. One plan or scheme was the transfer of alleged resistance prisoners or persons from occupied territories who had served their sentences or had been acquitted to concentration camps in Germany where they were held incommunicado and were never heard from again. Another scheme was the transfer of the inhabitants of occupied territories to concentration camps in Germany as a substitute for a court trial. Defendant Engert made such an order.

_Trials under NN Decree_

The evidence establishes beyond a reasonable doubt that in the execution of the Hitler NN decree the Nazi regime’s Ministry of Justice, Special Courts, and public prosecutors agreed to and acted together with the OKW and Gestapo in causing to be arrested, transported to Germany, tried, sentenced to death and executed, or imprisoned under the most cruel and inhumane conditions in prisons and concentration camps, thousands of the civilian population of the countries overrun and occupied by the Nazi regime’s military forces during the prosecution of its criminal and aggressive war.

The trials of the accused NN persons did not approach even a semblance of fair trial or justice. The accused NN persons were arrested and secretly transported to Germany and other countries for trial. They were held incommunicado. In many instances they were denied the right to introduce evidence, to be confronted by witnesses against them, or to present witnesses in their own behalf. They were tried secretly and denied the right of counsel of their own choice, and occasionally denied the aid of any counsel. No indictment was served in many instances and the accused learned only a few moments before the trial of the nature of the alleged crime for which he was to be tried. The entire proceedings from beginning to end were secret and no public record was allowed to be made of them. These facts are proved by captured documents and evidence adduced on the trial, to some of which we now advert.

The first trial of NN cases took place at Essen. A letter from the prosecutor, dated 20 August 1942, addressed to the Reich Minister of Justice, was received on 27 August 1942, states that five defendants were to be tried and that two of them were to get prison terms and that--

“In the remaining cases the death sentence is to be ordered
and inquiries made whether they should be executed by the
guillotine.”

These sentences were later pronounced.

In response to several inquiries from prosecutors at Special Courts in Essen, Kiel, and Cologne citing pending NN cases, the defendants Mettgenberg and von Ammon replied that, in view of the regulation for the keeping of NN trials absolutely secret, defense counsel chosen by NN defendants would not be permitted.

In these same inquiries, it is stated that if defense counsel were carefully selected from those who were recognized as unconditionally reliable, pro-State and judicially efficient lawyers, no difficulty should arise with respect to the secrecy of such proceedings. It is suggested that if an attorney should inquire concerning representation of an NN defendant, he should be informed that it is not permissible to investigate whether or not there was any proceeding pending against the accused. This inquiry related to 16 NN French defendants who were to be tried at Cologne. Other evidence introduced in the case showed that this practice was followed.

The foreign countries department of the Wehrmacht High Command reported to defendant von Ammon on 15 October 1942 a list of 224 alleged spies arrested in France in the execution of what was known as “Action porto”, of whom 220 had already been transported to Germany. Inquiry was made whether these prisoners should be regarded as coming under Hitler’s NN Decree. A later directive issued 6 March 1943, which was initialed by defendant Mettgenberg and sent to the SS Chief Himmler, states that orders and regulations covering NN prisoners in general will be applied to “porto action” groups. The circular decree states further that in case of death of “porto action” prisoners, the same procedure is followed with respect to secrecy as is followed in NN cases, and that the estates of “porto action” prisoners are to be retained by the penal institution for the time being, and that relatives are not to be informed about the death of such prisoners, especially not of their execution.

A letter dated 9 February 1943, Berlin, to the president of the People’s Court, chief public prosecutor at Kiel and Cologne, and Chief Public Prosecutor at Hamm, states that for the purpose of carrying out the Night and Fog decree or directive (_NG-253, Pros. Ex. 317_):

“In trials (before the Landesgericht), in which according to
the regulations, defense counsel has to be provided for the
defendant, the regulation may be ignored when the president of
the court can conscientiously state that the character of the
accused and the nature of the charge make the presence of a
defense counsel superfluous.”

In connection with the foregoing matter, a secret note to defendant von Ammon, dated 18 January 1941, suggests that a regulation concerning counsel for NN prisoners should be drafted. A letter dated 4 January 1943 states that in accordance with the power granted under the Fuehrer’s order of 7 December 1941 (_NG-253, Pros. Ex. 317_):

“Article IV, paragraph 32 of the Competence Decree of 21
February 1940 (relating to appointment of defense counsel) is
cancelled. The president of the court will order defendant to
be represented only if he is unable to defend himself or for
any special reason it seems desirable that defendant should be
represented.”

A letter dated 21 April 1943, Berlin, by Thierack, Minister of Justice, states that (_NG-256, Pros. Ex. 320_):

“Your ordinance of 21 December 1942 decreed that in criminal
cases concerning criminal actions against the Reich and the
occupation authority in the occupied territories, defense
counsel of one’s own choice should not be approved of on
principle.”

A letter by Thierack to the president of the People’s Court, Berlin, dated 13 May 1943, states that (_NG-256, Pros. Ex. 320_):

“The directives given by the Fuehrer on 7 December 1941 for the
prosecution of criminal actions committed against the Reich
or the occupation authorities in the occupied territories are
applicable, according to their meaning and their tenor, to
foreigners only, and not to German nationals or provisional
Germans.”

A draft of an extensive secret order or directives of the Reich Minister of Justice, dated 6 March 1943, covering secret NN procedure was sent to and initialed by or for heads of Ministry Departments III and IV (the defendant Mettgenberg), Department V (headed by defendant Engert), [initialed by Marx] and Department VI (headed by defendant Altstoetter). The directives instructed all so concerned to take further measures “in order not to endanger necessary top secrecy of NN procedure”. Separate copies of this order, dated 6 March 1943, were sent to the afore-mentioned ministry departments, including Department VI, headed by defendant Altstoetter, who admits having seen and executed the directives, to defendant von Ammon and to, among others, the chief Reich prosecutor at the People’s Court (defendant Lautz); the attorneys general in Celle, Duesseldorf, Frankfurt on Main, Hamburg, Hamm, Kiel, and Cologne; and the attorney general at the Prussian Court of Appeal; and for the attention of presidents of the People’s Court, district courts of appeal at Hamm, Kiel, and Cologne, and the Prussian court of appeal at Berlin. Among the measures of secrecy included in the order or directives were the following (_NG-269, Pros. Ex. 319_):

“The cards used for investigations for the Reich criminal
statistics need not be filled in. Likewise, notification of the
penal records office will be discontinued until further notice.
However, sentences will have to be registered in lists or on a
card index in order to make possible an entry into the penal
records in due course.

“In case of death, especially in cases of execution of NN
prisoners, as well as in cases of female NN prisoners giving
birth to a child, the registrar must be notified as prescribed
by law. However, the following remark has to be added:

“‘By order of the Reich Minister of the Interior, the entry into
the death (birth) registry must bear an endorsement, saying
that examination of the papers, furnishing of information and
of certified copies of death (birth) certificates is only
admissible with the consent of the Reich Minister of Justice.’”

Department VI headed by defendant Altstoetter handled matters relating to registration of deaths and births. The order further provides:

“Farewell letters by NN prisoners as well as other letters must
not be mailed. They have to be forwarded to the prosecution who
will keep them until further notice.

“If an NN prisoner who has been sentenced to death and informed
of the forthcoming execution of the death sentence desires
spiritual assistance by the prison padre, this will be granted.
If necessary, the padre must be sworn to secrecy.

“The relatives will not be informed of the death and especially
of the execution of an NN prisoner. The press will not be
informed of the execution of a death sentence, nor must the
execution of a death sentence be publicly announced by posters.

“The bodies of executed NN prisoners or prisoners who died from
other causes have to be turned over to the State Police for
burial. Reference must be made to the existing regulations on
secrecy. It must be pointed out especially that the graves of NN
prisoners must not be marked with the names of the deceased.

“The bodies must not be used for teaching or research purposes.

“Legacies of NN prisoners who have been executed or died from
other causes must be kept at the prison where the sentence was
served.”

Later, in some instances the right to spiritual assistance was denied and a later directive authorized the turning over of bodies of NN persons to institutes for experimental purposes.

A letter dated 3 June 1943, from the Reich Ministry of Justice to the People’s Court justices and the Chief Public Prosecutors, initialed by defendant Mettgenberg, deals with the subject of trials under the NN decree of foreigners who were nationals of other countries than those occupied by the Nazi forces. The difficulty obviously involved a violation of international law as to such nationals of other countries. In particular, the difficulty arose as to the regulation for the maintenance of secrecy of such trials and whether the secrecy with regard to NN cases should apply. The reply was that they were to be tried in accordance with the circular decrees of 6 February 1942 and 14 October 1942, and the regulations issued for the amendment of these circular decrees to be entitled “NN Prisoners Taken by Mistake”. This decree provides that if the trial of such foreigners could not be carried out separately from the trial of the nationals of the occupied countries for reasons pertaining to the presentation of evidence, then the trials were to be strictly in accordance with the provisions of NN procedure; otherwise said foreign nationals would obtain knowledge of the course of the trial against their accomplices.

A note signed by the defendant von Ammon, dated 7 October 1943, states that NN prisoners were often ignorant of charges against them until a few moments before the trial. He further states that Chief Reich Public Prosecutor Lautz asked him whether there were any objections to the translation of the indictment into the language of the defendant, which would then be handed to him. Defendant von Ammon replied that there would be no objection to the proceeding and stated (_NG-281, Pros. Ex. 323_):

“It proved rather awkward that defendants learned the details of
their charges only during the trial. Also, the interpretation
by defense counsel is not always sufficient because their French
mostly is not good enough and defendants were brought to the
place of trial only shortly before it was held.”

The same difficulty arose as to Czech defendants.

A report on a conference with respect to new procedure in treatment of Night and Fog cases originating in the Netherlands, signed “von Ammon” and “Mettgenberg, 9 November 1943”, addressed to Ministerial Director Engert and others, states that while returning from The Hague to Berlin the undersigned representative of the Reich Ministry of Justice held on 5 November as scheduled, a conference with the head officials of the court of appeals at Hamm and that defendant Joel thought the housing of NN prisoners, also such of Dutch nationality, at Papenburg, would be possible and unobjectionable. This was later carried out.

A secret letter dated 29 December 1943, addressed to defendant von Ammon from the presiding judge and chief prosecutor of Hamm Court of Appeals notified von Ammon of an imminent conference concerning transfer of the NN trials to the NN Special Courts at Oppeln and Katowice.

A letter from Breslau dated 10 January 1944, signed by Dr. Sturm, asks that ministerial councillor, defendant von Ammon, be available for a meeting at Breslau between 15 and 31 January 1944 to discuss routine proceedings for handling NN cases.

A letter addressed to the German commander of the French occupied zone states that effective from 15 November 1943 all cases of crimes committed against the Reich or the occupation forces in occupied French zones hitherto submitted to the ordinary legal authorities were to be taken over by the Special Court and attorney general in Cologne and Breslau.

The defendant von Ammon attended conferences with public prosecutors in Breslau and Katowice (Poland) on 18 and 19 February 1944, concerning housing of NN prisoners and possibility of transferring NN cases from the Netherlands, Belgium, and northern France to Special Courts in Poland for trial; von Ammon reported the results of these conferences in detail to, among others, the defendant Klemm (under secretary) and personally wrote on his report that he had secured appropriate Gauleiter’s concurrence to the proposed transfer. Shortly thereafter the Ministry of Justice issued a decree endorsed to the defendant Mettgenberg for signature, and submitted twice to von Ammon, for information and cosignature, whereby these Dutch, Belgian, and northern French NN cases were to be transferred to Silesia for trial. In response to this decree, von Ammon was personally notified that the defendant Joel (then general public prosecutor at Hamm) feared objections from the Wehrmacht because of the longer transportation involved in the transfer.

A directive by the Reich Minister of Justice with respect to treatment of NN prisoners, dated Berlin, 21 January 1944, initialed by defendant von Ammon, to the president of the People’s Court, to the Reich Leader SS, Reich prosecutor of the People’s Court (defendant Lautz), to the Chief Public Prosecutor at Hamm (defendant Joel), and others, states that when an NN prisoner had been acquitted by a general court, if it appears that the accused is innocent or if his guilt has not been established sufficiently, then he has to be handed over to the Secret Police. The directive further states:

“If in the main trial of an NN proceeding it appears that the
accused is innocent or if his guilt has not been sufficiently
established, then he is to be handed over to the Secret State
Police; the public prosecutor informs the Secret State Police
about his opinion whether the accused can be released and return
into the occupied territories, or whether he is to be kept under
detention. The Secret State Police decide which further actions
are to be taken.

“Accused who were acquitted, or whose proceedings were closed in
the main trial, or who served a sentence during the war, are to
be handed over to the Secret State Police for detention for the
duration of the war.”

A letter dated 21 January 1944, Berlin, to the OKW and the Judge Advocate General Department, dispatched 22 January 1944 (copy to Dr. Mettgenberg with request for approval) complains of lack of coordination in NN cases between military courts and justice officials. This complaint relates primarily to transfer of NN cases.

In answer to the objections to the transfer of NN cases arising in France from Cologne to Breslau, dated 18 January 1944, the defendants Mettgenberg and von Ammon insisted that the transfer is necessary and directed its accomplishment. Three days later a letter endorsed by Mettgenberg informed Himmler that this transfer of NN cases had taken place.

On 24 April 1944 von Ammon reported in detail on a trip he made to Paris previously referred to. This official visit served particularly to obtain information of the security situation in France and to determine whether the NN procedures of the Breslau Special Court were approved by the army. This meeting occurred in the office of the Chief Justice of the German Military Governor of Paris, General von Stuelpnagel. Von Ammon submitted this report both to Klemm and Mettgenberg who initialed it.

A letter from Hamm (Westphalia), 26 January 1944, to the Reich Minister Thierack, signed by defendant Joel, suggests the speeding up of proceedings to avoid delays in NN cases, and suggests that:

“The Chief Public Prosecutor submits record to the chief
Reich prosecutor only if, according to previous experience or
according to directives laid down by the chief Reich prosecutor,
it is to be expected that he will take over, or partly take over
the case.

“As a rule, even now when the draft of the indictment is
submitted for approval to the Reich Minister of Justice, the
records are not enclosed. The decision rests with me, to whom
the documents are brought by courier.”

A note signed by Dr. Reicholt, 20 April 1944, copy to defendant von Ammon, expresses the same difficulty experienced by defendant Joel and asks that Chief Public Prosecutor at the People’s Court decide quickly which of the accused persons he wanted to keep so that they may be transferred as quickly as possible.

The foregoing requests for speed in handling NN cases were due to disturbances caused by air raids. The Reich Minister of Justice replied, 26 April 1944, that in the main “the delay in the proceedings is unavoidable.”

Defendant von Ammon reported on a conference with German occupying forces of Belgium and northern France, held in Oppeln on 29 and 30 June 1944. Von Ammon stated that since the Allied invasion had not caused undue tension as yet, it was unnecessary at that time to make penalties in NN cases more severe. This report was initialed by defendant Mettgenberg.

_Disposition of NN Cases_

A statistical survey of NN cases as of 1 November 1943 made to Ministerial Director Dr. Vollmer, Berlin, 22 November 1943, shows cases and sentences passed on NN prisoners as follows:

1. Turned over by the Wehrmacht authorities to senior public prosecutors at Kiel, 12 cases with 442 defendants; at Essen, 474 cases with 2,613 defendants; at Cologne, 1,169 cases with 2,185 defendants.

2. Charges filed by senior public prosecutors as follows: At Kiel, nine cases with 175 defendants; at Essen, 254 cases with 860 defendants; at Cologne, 173 cases with 257 defendants; by chief public prosecutor at the People’s Court (Lautz), 111 cases with 494 defendants.

3. Sentences passed by Special Courts at Kiel, eight on 168 defendants; at Essen, 221 cases with 475 defendants; at Cologne, 128 cases with 183 defendants; at People’s Court, 84 cases with 304 defendants.

The defendant von Ammon testified that about one-half of all defendants tried by the People’s Court were given the death penalty and were executed. The foregoing documents show that defendant Lautz was Chief Public Prosecutor at the People’s Court at the time the 304 sentences were pronounced in the Night and Fog cases.

A similar survey, 5 months later (30 April 1944), shows that of a total of 8,639 NN defendants transferred to the various Special Courts and the People’s Court in Germany, 3,624 were indicted, and 1,793 were sentenced. Defendant von Ammon initialed this survey.

The foregoing statistical reports as to time are obviously incomplete. They do not show the number of NN cases tried at Breslau, Katowice, and other places. The foregoing documents show that at these places great difficulty was experienced because of lack of prisons for the large number of NN prisoners who were sent to these areas. Nor do they show the number of NN prisoners committed to concentration camps without trial. They do not show the number of residue NN prisoners who were at the end of the control of NN matters by the Minister of Justice committed to concentration camps and never heard from thereafter.

_Use of NN Prisoners in Armament Industry_

In file of reports for the years 1943 and 1944 of NN cases still pending in the Ministry of Justice, the attorney general at Katowice (Poland) stated to the Ministry of Justice the following (_NG-264, Pros. Ex. 334_):

“NN prisoners held within the jurisdiction of the Court of
Appeal of Katowice are already employed to a large extent in
the armament industry, regardless of whether they are being
held for questioning or punishment. They are quartered there in
special camps at or near the place of the respective industrial
enterprise. In this way it is intended, if possible, to place
all NN prisoners at the disposal of the armament industry.

“It has been disclosed that the NN prisoners already employed
in the armament industry, as for instance the 400-odd prisoners
working in Laband, have done a very good job and excel in
particular as skilled workers. The armament industry therefore
wants to retain the employed NN prisoners also after their
acquittal or after they have served their sentence.

“I ask for a decision on whether and, if so, how that demand can
be complied with. Considerable doubts arise from the fact that
there is no legal right to confine them further and that the
judicial authorities would thus take preventive police measures.
There is the question, however, whether the situation of the
Reich does not justify even such extraordinary measures.”

This request was handled by defendant von Ammon, who endorsed it as follows:

“Submitted * * * first to Department V (headed by defendant
Engert) with the request for an opinion. If you have no
objections I intend to contact the RSHA in accordance with the
report of the attorney general at Katowice.”

_Clemency in the NN Cases_

As Under Secretary, defendant Klemm was required to pass upon clemency matters either while acting with or in the absence of the Minister of Justice. He admits passing upon clemency pleas in NN death cases and refusing all of them. Fourteen documents concerning NN matters passed through defendant Klemm after he became under secretary of State. He knew of the transfer of NN cases from Essen to Silesia and knew of “routine” NN matters which passed through his department.

In the fall of 1944 Hitler ordered the discontinuance of the NN proceedings by the justice and the OKW courts and transferred the entire problem to the Gestapo, the NN prisoners being handed over to the Gestapo at the same time. In later conferences attended by defendant von Ammon, the Ministry of Justice agreed to and later actually carried out the transfer by committing them from the Ministry’s prisons to the Gestapo’s custody. Defendant Lautz was ordered to suspend People’s Court proceedings against NN prisoners and transfer them to the Gestapo. The witness Hecker stated that those NN prisoners of the Berlin district, of which he had knowledge, were sent to Oranienburg.

The final order of the Ministry of Justice committing all NN prisoners on hand to the Gestapo and the concentration camps was one of extreme cruelty.

The foregoing documents and the undisputed facts show that Hitler and the high ranking officials of the armed forces and of the Nazi Party, including several Reich Ministers of Justice and other high officials in the Ministry of Justice, judges of the Nazi regime’s courts, the public prosecutors at such courts, either agreed upon, consented to, took a consenting part in, ordered, or abetted, were connected with the Hitler NN plan, scheme, or enterprise involving the commission of war crimes and crimes against humanity during the waging of the recent war against the Allied nations and other neighboring nations of Germany.

The foregoing documents and facts show without dispute that several of the defendants participated to one degree or another either as a principal; or ordered, or abetted, took a consenting part in, or were connected with the execution or carrying out of the Hitler NN scheme or plan. The defendants so participating will be later discussed in the summation of the evidence.

The Night and Fog decree originated with Hitler as a plan or scheme to combat alleged resistance movements against the German occupation forces but it was early extended by the Ministry of Justice to include offenses against the German Reich. Often the offenses had nothing to do with the security of the armed forces in the occupied territories. Many of them occurred after military operations had ceased and in areas where there were no military operations. The first secret decree of the Ministry of Justice for the execution or carrying out of the NN decree provided for:

“1. The prosecution of criminal offenses against the Reich or,
”2. The occupation troops in occupied areas.”

It declared that the directive will be as a rule applicable to the seven above listed general types of offenses or crimes, including “Communist activity”. The term “Communist activity” is general and political in nature. The evidence shows that political prisoners in occupied territories were tried and sentenced to death under the NN proceedings. Pertinent here with respect to the so-called resistance activities is the finding of the IMT that:

“The local units of the Security Police and SD continued their
work in the occupied territories after they had ceased to be
an area of operations. The Security Police and SD engaged in
widespread arrests of the civilian population of these occupied
countries, imprisoned many of them under inhumane conditions,
subjected them to brutal third degree methods, and sent many of
them to concentration camps. Local units of the Security Police
and SD were also involved in the shooting of hostages, the
imprisonment of relatives, the execution of persons charged as
terrorists, [and saboteurs without a trial], and the enforcement
of the ‘Nacht und Nebel’ decrees under which persons charged
with a type of offense believed to endanger the security of the
occupying forces were either executed within a week or secretly
removed to Germany without being permitted to communicate with
their family and friends.”[656]

Defendant Schlegelberger explained the fundamental purpose of the NN decree to be a deterrent “through cutting off of the prisoners from every contact with the outside world”. He further explained “that the NN prisoners were expected and were to be tried materially according to the same regulations which would have been applied to them by the courts martial in the occupied territories” and that accordingly, “the rules of procedure had been curtailed to the utmost extent.”

The enforcement of the directives under the Hitler NN plan or scheme became a means of instrumentality by which the most complete control and coercion of a lot of the people of occupied territories were affected and under which thousands of the civilian population of occupied areas were imprisoned, terrorized, and murdered. The enforcement and administration of the NN directives resulted in the commission of war crimes and crimes against humanity in violation of the international law of war and international common law relating to recognized human rights, and of article II, paragraphs 1(_b_) and (_c_) of Control Council Law No. 10.

During the war, in addition to deporting millions of inhabitants of occupied territories for slave labor and other purposes, Hitler’s Night and Fog program was instituted for the deportation to Germany of many thousands of inhabitants of occupied territories for the purpose of making them disappear without trace and so that their subsequent fate remain secret. This practice created an atmosphere of constant fear and anxiety among their relatives, friends, and the population of the occupied territories.

The report of the Paris Conference of 1919, referred to above, listed 32 crimes as constituting “the most striking list of crimes as has ever been drawn up, to the eternal shame of those who committed them.” This list of crimes was considered and recognized by the Versailles Treaty and was later recognized as international law in the manner herein above indicated. Among the crimes so listed was the “deportation of civilians” from enemy occupied territories.

Control Council Law No. 10 in illustrating acts constituting violations of laws or customs of war, recognizes as war crimes the “deportation to slave labour or for any other purpose of civilian population from occupied territory.” (Art. II, 1(_b_).) C. C. Law 10 [Article II] paragraph 1(_c_) also recognizes as crimes against humanity the “enslavement, deportation, imprisonment * * * against any civilian population.”

The IMT held that the deportation of inhabitants from occupied territories for the purpose of “efficient and enduring intimidation” constituted a violation of the laws and customs of war. The deportation for the purpose of “efficient and enduring intimidation” is likewise condemned by C. C. Law 10, under the provision inhibiting “deportation * * * for any other purpose, of civilian population from occupied territory.”