In both cases , disciplinary measures were taken without any restraint and beyond that charges were made against the superintendent for disregarding of his duty of supervision. He was sent away and removed from office.
Q. The prosecution in this connection submitted another document, It is Exhibit 291, that is NG-770, also in Document Book VII -B. It deals with the problem whether church services could be held in penal institutions. I ask you whether you had anything to do with that matter?
A.Yes, and I remember it quite well because I had a rather not argument with Thierack about that matter. Thierack , without informing me, prohibited that any church services could be held in penal institutions. I found out about that directive through the Deutsche Justiz -- the periodical for German Justice -- of 1944, on Page 270. I immediately went to Thierack and referred to ethical reasons, but he did not abstain from his intentions. Then I used stronger arguments. I told him that I knew from the period of my work in the Party Chancellery that Hitler himself had issued a strict order that during the war all measures which might cause struggles with the church should be abstained from. Thierack doubted that. I offered that I would get a written confirmation from the Party Chancellery about that. He forbid that I write to who Party Chancellery. I told him in the course of the conversation that I was quite sure what the outcome of that matter would be. The moment one bishop would turn to Hitler, Hitler , on account of his basic attitude, would disavow Thierack.
A short time later when letters were received from German bishops, from the Protestant side as well as from the Catholic side, I went to Thierack and he became rather thoughtful and agreed to rescind the former order. That happened in a very carefully stated form, but it actually occurred. Especially for that matter, I claim a certain amount of credit.
Q. In Exhibit 297, that is NG-405; also Document Book VII-B, we find an affidavit by the director of the penal institution by the name of Strehlow.
In that affidavit of the 22nd November '46, Strehlow stated in that affidavit that in the penal institution Ploetzensee shortly after the beginning of the war -- that is in 1939 -- experiments were made with poison gas. I ask you, did you hear anything about these experiments during the period of your activity in the Ministry of Justice?
A. No, neither in office nor outside of the office.
Q. You told the Tribunal that you received only very few reports from Department V, that is Penal Administration; that is to say, that practically you had nothing to do really with Division V. I ask you, did you come to know about measures taken to evacuate penal institutions? The prosecution submitted a rather serious document, that is Exhibit 290,NG-030, Document Book VII-B. It is an instruction from Division V, that is to say from the Chief of Division V to the General Prosecutor at Linz. There are further instructions attached to this directive, and from these instructions it can be seen that in case of an approach of the enemy in various graduations, the prisoners should be released of transferred in groups and also a certain number of them should be killed or exterminated. Do you happen to know anything about that directive sent to the General Prosecutor at Linz, or did anything about that come to your attention?
A. I did not have any knowledge of these directives. I know that I am under oath. I would like to take this opportunity to emphasize that I am absolutely conscious of that fact. I saw these directives for the first time here in these documents. These directives bear no date, no address. It is not known to me whether and to what extent they were distributed to all General Prosecutors. I have already emphasized that practically I had nothing to do with Division V and only a few reports were made to me.
With reference to the instructions themselves, I can explain the following.
It is really a detail, but it assures me that I have never seen these instructions. As every individual, I have my peculiarities. One of them is that I am allergic to certain linguistic mistakes, and if these mistakes accurred in letters which I had to sign, then I had these letters rewritten in my office so that such expressions should be avoided. For instance, if these instructions contained the word "weitgehendst," it's linguistically impossible, because a verb cannot be used that way. It should be "weitestgehend." If I had seen these instructions I probably would not have permitted that word to be used. Moreover, I would have protested immediately to Thierack for legal as well as for humane reasons and also for practical considerations, because I could not imagine how a thing like that could be carried out.
Q. Did you, in any other connection , that is not with reference to Exhibit 209, have anything to do with directives concerning the evacuation of penal institutions the moment the enemy approached?
A. Yes, in two cases I gave directives about the evacuation of penal institutions. I had to do that really by coincidence. My home was in Bautzen in eastern Saxony. On the 11 of February 1945, the Russians were about 50 kilometers before Bautzen. In Bautzen there was a penal institution with several thousand inmates. On the 11 of February , the Director of the Penal Institution came in my house. I happened to be in Bautzen over Sunday and returned on Monday morning to Berlin. He asked me for instructions as to what he should do on account of the proximity of the enemy. On account of the lack of time and without con acting the General Prosecutor who was really competent for it, I gave the instruction to immediately release all prisoners who still had to serve no longer than one year. It may even be that I mentioned a larger remainder of the term. As the second measure, I ordered the evacuation of all other prisoners to Waldheim, a place about 120 kilometers further west. The opportunity was favorable, particularly favorable because the Director had assured himself the necessary railroad cars.
The penal institution was outside of the town of Bautzen and the prisoners without any commotion could be transported away.
When on Monday morning I returned to Berlin, the first release of prisoners were in the same train, as I could find out from conversations of people who were standing around me and who happened to be released prisoners.
Another case is the case of the penal institution Rodenfeld. I went there around Easter, 1945, that is the time between the 28th of March and the 1st or 2nd April, 1945. There I gave the sane instructions to the matron of the penal institution concerning the release of penal prisoners; and the second instruction I gave in the mantime because of the advance of allied troops, the unoccupied space had become rather narrow. I gave a second instruction to remain with the balance of the prisoners in the institution and to turn it over to the American troops. Both measures that I took are in contradiction with the basic instructions, but I could not follow the basic instructions because I did not happen to know them at all.
Q Herr Kleem, just the same you are put in connection with other evacuation measures; that is the case which occurred in the penal institution Sonnenburg. It is known to you that according to an affidavit by Frau Lepin, during the night from the 29 to 30th January, 1945, in Sonnenburg over eight hundred people were shot dead by the SS. You have heard here before this Tribunal the witness Hooker and the witness Eggensberger. They testified about telephone calls at night made to Thierack, or the then General Prosecutor Hansen. During the last telephone conversation between Eggensberger and Hanson, your name allegedly was mentioned, This matter is of extraordinary importance. Would you please comment on it and tell us what you know about that entire group of problems.
A Here again, to the best of my knowledge and conscience, and with reference to my oath, I can only say that I have never been informed, I have never found out anything about, the order by Gauleiter Stuertz; and that here only from the documents of this trial I was informed that Gauleiter Stuertz had is aid an order; and from these documents only, particularly from the affidavit of Lepin, I found out that over eight hundred people were to be shot dead at Sonnenburg. I know the following about Sonnenburg: About the middle of January, 1945, Thierack told me the following: At that time Himmler had become the commander in chief of tho so-called Weichsel Army, that was the army which was supposed to protect Pomerania and Berlin, and, as army commander, Himmler had issued a very severe decree where each local authority, as well as the civilian population in General, was prohibited to evacuate without his specific permission.
Also, the Supreme Reich authorities received that order, as well as the minister of Justice Thierack. He thereupon, especially as far as Sonnenburg was concerned, that is what he told me, approached Himmler and asked for apremature evacuation. Himmler, as he told me, did not only prohibit evacuation of Sonnenburg, but he also told him that he needed the workers among the inmates of the prison in Sonnenburg for military purposes, and that, for that reason, he subordinated the prisoners of Sonnenburg immediately under his own command. Thierack told me thereupon -- here I, as Minister of the Reich, can no longer do anything because within the area of operations the military commander has more authority than a civilian Reich Minister.
Q Would you, as precisely as possible, indicate to the Tribunal the date when Thierack gave you that information?
A It must have been the middle of January, 1945 -- immediately after that order had been issued by Himmler. Thierack told me at the same time that his orders, his instructions, had been rejected. I know for sure that it was before the conference of the division chiefs, which probably took place at the end of January, 1945; and which is represented in Exhibit 45 by the minutes; because, during that conference of division chiefs, as can be seen from the minutes, Thierack explicitly referred to that order by saying that it was strictly prohibited to evacuate prematurely.
Q I should like to interrupt you here. May it please the Tribunal, this again is with reference to Exhibit 45, NG-195, which was repeatedly mentioned, in Document Book 1-B, and it is tho conference of the department chiefs mentioned by the witness of the 31st January, 1945; and is found on page 114; of Document Book 1-B, that is the German page. The following can be found:
"The field offices of the Ministry in Prenzlau and Zoebenick".-- those were the emergency locations -- "are not to be evacuated prematurely, not even by members of the family." Witness, you may now proceed.
A It was about ten days before Thierack said that in this conference of the department chiefs, that I had already the conversation with Thierack about Sonnenburg.
Q I have already mentioned here the affidavit of Frau Lepin. I should like to indicate tho exhibit number -- Exhibit No. 293, that is NG-741, Document Book VII-B; German page 27. Frau Lepin assured, in lieu of oath, that that murder at Sonnenburg occurred during the night from the 29th to the 30th January, 1943. Would you please tell the Tribunal whether at that time, in your opinion, Thierack had at all the possibility to issue any directive, any instructions, or orders concerning Sonnenburg?
A It is not only my opinion, but it was absolutely clear that at that time that penal institution was exclusively under the order of Himmler.
Q Witness, I mentioned already that the witness Hecker spoke about night telephone calls made to the director of the institution at Sonnenburg; that these telephone calls were made at the beginning of February, 1943; and on that occasion Thierack was supposed to have told the witness Hecker, when Hecker informed him about the telephone call from Sonnenburg, that Sonnenburg should defend itself against the approaching enemy. Do you happen to know anything about any such statements ?
A Concerning time which Hecker mentions, I cannot say anything. If, however, Thierack made that statement that the penal institution was to defend itself, then, that is in accordance with what he told me in the middle of January about the situation under the command of Himmler. As military commander, the order for the defense could only be given from a military office. Whether or not that Thierack knew that such an order had been given, I couldn't tell.
Q Did you ever speak with the General Prosecutor Hansen, whose name has been frequently mentioned here by the penal institution, about the fact that any dispositions had been made by him or anybody else? -- With regard to that penal institution?
A Yes, I spoke to Hansen about the subject Sonnenburg, and that after Thierack instructed me about what I have mentioned before. Hansen and I discussed the problem that the authority over Sonnenburg had been changed. Hansen knew about it because he repeated it to me. At that time evacuations in general were carried out only by the Reich Defense Commissar, and the Reich Defense Commissar, as a result, had to have an interest to see that no penal prisoners should mix among the fleeing population. I also discussed that problem with Hansen in that sense, stating that the minister could no longer dispose of that natter and that it might be that through Stuertz, who was the Reich Defense Commissar, he could persuade Himmler to permit the evacuation in time.
Hansen knew the Gauleiter Stuertz very well from his previous activity in the Party Chancellory. Hansen had for a long time been personnel referent with Bormann, and belonged to the Reichsleiter's Office.
Q. Was that the only conversation you had with Hansen about Sonnenburg?
A. Yes, apart from that I did not discuss Sonnenburg with Hansen.
Q. The witness Eggensberger, furthermore, mentioned that he made a notation about that conference with Hansen, a file notation about the telephone conversation --- according to the statement by the witness Eggensberger, he submitted that notation to Hecker the next morning. I ask you now, did you ever see that file note or that notation made about the telephone conversation -- was it submitted to you officially or did you, by accident, find it on your desk?
A. No, I never saw that notation. If Hansen mentioned my name in this connection to Eggensberger, and described things correctly, then he could only have done it in connection with the question as to who was competent to give any orders to Sonnenburg; but, if he happened to say that I agreed that the prisoners could be turned over to the Gestapo, that would have been absolutely wrong. That the prisoners were turned over to the Gestapo, I only found out here in this court-room. My knowledge of these matters do not go any further then I have described them. If , moreover, I had read that notation, and it would have contained that last passage. I mentioned, then I would have corrected that immediately; I would have been in a position to correct it. I do not know whether Thierack received that notation made by Eggensberger.
Q. You have stated that V had practically nothing to do with you; was it within the competence of Division V to decide whether prisoners should be turned over to the Gestapo?
A. As such, merely administratively, the general public prosecutor, as can be seen from the situation, had to act independently in contact with the Reich Defense Commissar, but such far-reaching measures with such far-reaching consequences, if it would have been possible to comm unicate with the Ministry at that time, would have to be discussed there.
Any one who knew the independent nature of Thierack, knew full well that Thierack would have reserved the right to determine that for himself, and that in this matter no one else would have been permitted to make a decision.
Q. Herr Klemm, the last question in this connection concerns Stuertz, the Gauleiter of Brandenburg, who was also Reich Defense Commissar. Did you ever have any negotiations with him, particularly about the case Sonnenburg ?
A. I have already explained how my conference came out with Hansen concerning the case Sonnenburg. I do not want to repeat that, but I can imagine that Hansen wanted to cut short the discussion with Eggensberger by saying that I knew about the matter, because several weeks or months before Hansen had come to see me, and complained particularly about Hecker and Eggensberger. He said among other things, that if these men see that I do not have the same intentions, the they always refer to it that that was the wish of the Minister or the Undersecretary to do so. I knew the routine of the Ministry too well, and in such cases, I said I will get in touch with the Minister and the Undersecretary. They cannot come to me with such tricks. Perhaps there was a similar situation when Hansen used these tactics.
Q. Herr Klemm, the question of Hansen seems to be cleared up. I asked you also about Gauleiter Stuertz; will you please, briefly, tell us whether you knew Stuertz, who, at that time, was Reich Defense Commissar, and whether you had any conferences with him concerning the Sonnenburg case?
A. I never had any conference with Stuertz; nor with the police; nor any negotiations with the SS about Sonnenburg; not even a conversation; and, neither was informed by him or by Hansen, in writing or orally, about any negotiations with any of these agencies on their part.
Q. We come now to another chapter, that is Division 15; what were your relations to that Division as Under-Secretary?
A. Division 15 was not even technically under my competency; that can be seen from exhibit 45 which has so frequently been mentioned, the minutes of the meetings of the Division Chiefs. When I first found out that there was such a Division 15, I asked Thierack what that was, and he told me the problem was that the Qualifications among the prisoners should be utilized reasonably in armament industries, add for that purpose Division 15 about a year and a Quarter ago had been established. That Division had finished its work and was now liquidating. During the entire period of my activities as Under-Secretary, I , no report was made to me about matters of Division 15, not even about matters of its liquidation.
Q. Although you have given us this explanation, I still have to go briefly through the documents which the Prosecution has submitted against you in this connection. I only want to quote the documents as exhibits: exhibit 39, 143,263 to 269, 271 to 277; these documents are concerned with Division 15. Can you please tell us whether you are to be brought in any connection , that is, concerning your period of office, as Under-Secretary?
A. No, I am in no connection to these documents. All of them, except those that are affidavits, bear dates which are before the period before my activities as Under-Secretary. I have never seen them. When I came into office these problems had been solved for over a year. That also applies to the transfer of Poles, Jews, and Gypsies; that these groups were dealt with in Department V,I found out here from the witness Hecker when he was in the witness box. It can be seen, in fact , from exhibit 268, that these matters were concluded in 1943.
Q. Did you by way of conversation obtain any information about matters of Division 15, even though officially nothing was submitted to you?
A. No, only that penal prisoners for the purpose of working in the armament industries had been turned over the police and that that action was concluded.
Q. Did you have an opportunity to discuss these matters with Engert?
A. I never discussed these matters, as Under-Secretary , with Engert.
Q. Exhibit 271, that is NG 557, document book IV-B, bears a date before your time in office. If we look closely at this exhibit, however, we find that several inmates at that time, when you were undersecretary, were transferred from prison into a concentration camp. Is it possible that on the basis of that situation, you may have obtained knowledge of these individual cases?
A. Exhibit 271 is a copy of the prison book register in Ebra. I went through that prison register in the same manner as I did through the list of death sentences, and I found out that the prisoners under numbers 113, 119, and 413 on 22 March and on 29 March 1944 -- that is, during the time when I was already UnderSeSecretary -- were tuned over to the police, and that, to the criminal police. In all cases, however, instruction was given before the time I assumed the office as Under-Secretary. The date of the directive from the Reich Ministry of Justice and the case of 113, is 4 May 1943, in the case of 119 also 4 May 1943; and in the case of 413 , it is even 22 October 1942. That case, in my opinion, is not connected with that action at all because the Division giving the instruction is neither Division V nor Division XV, but it is Division IV-A.
JUDGE BRAND: Just a minute ... We will take our morning recess of fifteen minutes.
(A recess was taken. )
THE MARSHAL: Persons in the court room will please find their seats.
The Tribunal is again in session.
BY DR. SCHILF:
Q May it please the Tribunal, before I continue the examination of the witness I, would like to make a statement. My colleagues have requested me to say the following on behalf of the defendants:
Yesterday instructions were issued in the prison that the defendants will no longer be allowed to be in single confinement but that two defendants will be put together in one cell. The defendants believe that this puts difficulties in the way of their defense. They are now very much occupied with preparation of their defense and it would hamper matters seriously if two defendants would be put in one small cell, the more so since several defendants have typewriters and work on them. Now during the time the Court is in session the defendants only have the opportunity to prepare their defense during tho evening. They have to work during the evening in their cells by light and the quarters arc so close that only one can work at a time. The defendants, therefore, request through me that if the Tribunal can exert any influence in postponing this measure for some time for tho defendants of case No. 3, that is, for these defendants, they would appreciate it if the Tribunal would do so. This has fulfilled the task which my colleagues have asked me to undertake in this regard.
THE PRESIDENT: The Tribunal will give consideration to your request, first as to whether we have any jurisdiction over the matter, and, second, if we have jurisdiction, as to what should be done.
DR. SCHILF: Thank you very much, Your Honor.
BY DR. SCHILF:
Q Witness, we now continue with the discussion about division 15 of the Ministry. You spoke about the prisoner register in Ebrach. If you have anything to add, please do so now.
A One short remark: This interim between the order issued by the Ministry and the actual transfer of the prisoner is to be explained as follows: The prisons did not have to undertake the transfer immediately if the prisoner concerned were indispensable for the prison. This can be seen from Exhibit 264; as well as from Exhibit 269.
Q You were present when a witness here testified that he experienced that prisoners were killed after they wore transferred to a concentration camp. Please tell the Tribunal whether you heard anything about that at the time.
A I have already made a statement in regard to this question, when I spoke about my general knowledge about concentration camps. My professional position did not afford me an opportunity to know any more. I remember only one conversation which I had with Thierack. In February, 1944, Thierack had been in Linz for the introduction of the new president of the District Court of Appeals. When he returned he told me that for about an hour ho had inspected the concentration camp Mauthausen. He added that he had an especially favorable impression, especially that the people received good food because they were good, skilled workers. He added with some bitterness, "One can see again in this instance how much more Himmler has at his disposal than the administration of justice."
Q Did you believe what Thierack told you at the time?
A Yes, I believed it. However, I did know that abuses had occurred in the concentration camps. I myself experienced that in the Hohenstein case, but I did not know that the abuses were so terrible as we found out after the collapse in general. It was even as follows: In January or February of 1945, the President of the Swedish Red Cross, Count Bernadette, called on Thierack through the mediation of the Norwegian, Swedish and Danish prisoners through the Swedish Red Cross. Ho had already negotiated with Himmler in regard to concentration camp inmates of Swedish, Norwegian and Danish nationality.
Himmler had agreed to put these foreign concentration camp inmates together in Neuengamme in one camp so that it would be easier to look after them. Then Count Bernadette came to Thierack and asked that Norwegian, Danish and Swedish inmates, to the extent that they were people who were prisoners in institutions of the administration of justice should be handed over to Himmler so that they too would be sent to Neuengamme concentration camp. For mo that was an additional reason that this Neuengamme concentration camp must be all right.
Q The Prosecution has introduced Exhibit 412 to Exhibit 414 against all defendants. These are files in which the concentration camps were listed and official reports about the conditions which existed there when the Allied troops entered the concentration camps for the first time. Herr Klemm, in view of the decision that the Court made this morning that conspiracy is no longer to be considered an independent count in the indictment, can you state briefly in a few words that you can say about your knowledge in regard to Exhibits 412 to 414?
A: I do not want to repeat what I have already stated in regard to ay knowledge about the occurrences in concentration camps. I only want to make a supplementary remark. This trial here took place in another court room for a short period and in that court room there was a map on which nineteen concentration camps were marked. I looked at these names very carefully and found out that until the time of the collapse I did not even know the names of fourteen of those nineteen concentration camps. I know that the concentration camps of Dachau and Buchenwald existed. That I know before 1939. That there was a Nouengamme concentration camp I found out due to the intervention on the part of Count Bernadette. About the existence of the Mauthausen concentration camp I found out in February 1944 through what Thierack told me. That I found out in the beginning of February 1945 when the question of transferring senates of the People's Court to Bayreuth came up. That was represented as being particularly favorable because the police could lodge their prisoners in the Flessenbuerg camp which was in the prosimity. I did not knew anything more.
Q: With that we can leave this field. We now come to the next charge of the indictment. You are personally made responsible in the Indictment for having assisted in the so-called lynch justice on the part of the German population exorcised on baled-out Allied flyers during the war. May it please the Tribunal, the documents which were introduced against the witness in that connection arc Exhibit 108, that is NG 304 in Document Book 1-E, Exhibit 109, that is Document 635-PS in the same document book I-E, Exhibit 110, that is NG 149, also in Document Book I-E. According to Exhibit 108, we already discussed it a few days ago - Bormann had sent a secret letter from the Fuehrer Headquarters to the Nazi Party which was addressed to Gau and Kreisleiters, he spoke about lynch actions which had already been taken by the people and it says further, and I quote, no police measures of prosecution of the people who participated in this were instituted, that is, he is speaking in the past tense.
Exhibit 109 shows correspondence between Lammers and Thierack. Lammers informs Thierack about this circular letter sent out by Bormann. First, I want to ask you, in what relationship did you see these statements of Bormann to the Kreisleiters and banleiters to Thierack at the time?
A: According to the text of Lammers' letter, Exhibit 109, there must have been an enclosure in this letter.
Q: At the time did you obtain knowledge of Exhibit 109 and the enclosure, as you call it, Exhibit 108?
A: Yes, I saw Lammers' letter and I must have seen this circular letter of Bormann's together with it.
Q: Bormann spoke about three of those cases which had occurred in the past. Bormann stated that penal prosecution did not take place. When you saw these two letters -- when those Exhibits 108 and 109 were submitted to you, did you know anything about it, that is that in the past the Administration of Justice, that is the Court, abstained from penal prosecution against members of the German population.
A: I consider that that is absolutely impossible. If penal prosecution would have been abstained from, this could have bean done only by quashing the trial and for such a quashing Hitler was competent exclusively or the Minister of Justice to the extent to which this right had been delegated to him by Hitler.
This can be seen from the clemency regulations which have already been introduced as a document here, in part. I cannot remember such a case was discussed and I cannot find anything in these reports about it either. I looked at them with that in mind.
Q: If you say that at the time when you received this letter you did not know any past cases, how should one this understand Bormann's letter? He is speaking of the past and says that penal prosecutions did not take place.
A: This can only be explained as follows: According to the letter, before it was sent out, such cases must have occurred. Himmler had already in 1943 instructed his police not to interfere in disputes between the German population and Terror Flyers which had been shot down. This was already brought out in the IMT trial. This sentence which Bormann used in his circular letter can be explained in my opinion only as follows, namely: that the police did not forward denunciations to the Administration of Justice and that in this way a penal prosecution did not take place, but only because the Administration of Justice did not hear anything about those matters. From the hint that Lammers gives in this letter that Himmler had already informed his police alsl on the basis of Borman's circular letter it is quite clear to me that such denunciations to the Administration of Justice were also not to be made in the future. But, of course it could happen that the Administration of Justice found out about such cases on its own and took them up, but incidentally that Hitler backed this action himself is in my opinion shown in Exhibit 110.
Q: Herr Klemm, Exhibit 108 and 109 bear your initials. I now want to ask you were these statements submitted to you before they were submitted to Thierack or after that?
A: I received these documents after Thierack had seen them and after he had already made his nutation on them.
Q: This notation by Thierack reads as follows: "IV RV with the addition that such cases for the purpose of examination in regard to quashing shall be submitted to me" that is "to me," Thierack, that is Thierack's notation. What do you have to say about that? How did you understand that notation?
A: The prosecution submitted this document with a supplementary sheet and this says, at least in the German edition of the document, handwritten note on the right upper corner, signed "Klemm". That is not right. There isn't any handwritten notice in the upper right hand corner at all but merely a K.L. my initials. Below the initials that is about the upper one third of the page, there is the notation which has just been quoted we which was written by Thierack. The hand-written note is without doubt in Thierack's hand--writing. If the original were available and not merely a photostat, one would be able to see that this note was written with a green pencil. That was the color in which Ministers had to sign, according to the business regulations for the highest Reich authorities. Whereas in a purple pencil only my initials are on this document.