MR. KING: Your Honor, that is practically the same question I objected to a moment a go when the Court asked for a restatement of the question. We got a different question, and now we are around to the question which I objected to before.
THE PRESIDENT: The objection will be sustained as to the reasons that actuated Canaris.
Q. Then may I ask, Witness, who told you this when you spoke to the person in the Ministry of Justice who dealt with these matters?
A. The negotiations with the Referent in the Ministry of Justice were carried out by my two assistants, generally, that is, at any rate, I cannot remember any personal conversations or any negotiations, at least not so well that I can make a statement about them under oath now.
Q. Witness, what is your opinion as to what happened to these people in as much as they received prison sentences?
A. That was the main subject of my conference with Freisler. I had asked him to tell me whether in the administration of justice these prisons would be in a position to accept these prisoners in their own institutions. And, Freisler confirmed without reservation that was possible. These prisoners, therefore, after they had been sentenced should be put in the institutions of the Administration of Justice, meaning the prisons.
Q. In conclusion, Witness, may I ask you once more whether the aforementioned Admiral Canaris was one of tho leaders of the resistance movement, and was executed in 1944?
A. That I know only from the newspapers?
DR. BEHLING: I have no further questions.
WITNESS LEHMANN: I ask to be permitted to add one more sentence to my last answer. I ask for the permission to add one more sentence to the last answer which I have given. I do not only know it from the newspapers, but the fact that he was one of the leaders of the resistance movement was also known to me through official channels.
DR. SCHILF (for defendants Klemm and Mettgenberg):
I should like to continue the cross examination for my client Mottgenberg with the permission of the Tribunal. First I have to put one question concerning Canaris, and that is on the basis of the following circumstances: In document book VI, there is a document No. 226, exhibit 312, which has been offered in evidence, and that is a notice by the defendant von Ammon, at the end of this notice the date is 26 September 1942. It is on page 49 in the German document book and the same page in the English document book. Von Ammon made tho following remark: "To give consideration to those questions, several questions which have been enumerated at the department meeting with the OKW legal section of the Armed Forces and counter espionage section is to be held on the 2nd of October 1942." From this evidence produced by the Prosecution, there can be seen that there existed a connection between the Ministry of Justice not only to the legal divisions of the Armed Forces but also to the department Auslandahwehr -- counter espionage, was headed by Admiral Canaris. For that reason, I believe since the name of Canaris has been mentioned by the witness, we be permitted to put a further question to the witness now.
MR. KING: I want to point out merely that the witness did not mention the name of Canaris to this extent in the direct examination, and Dr. Schilf is limited to ask questions as to what was developed on direct examination and not what was developed on cross examination.
DR. SCHILF: I may recall it incorrectly, but I do not believe that I am wrong that he mentioned the name of Canaris in the direct examination.
THE PRESIDENT: In any event we will hear your question.
DR. SCHILF: That was my intention, anyway.
Q. Witness, in what way was Canaris committed to the execution of the nacht und nebel decree, and in what way did he fight the nacht und nebel decree? That is the expression mentioned by the witness as far as his own efforts were concerned.
A. To bring it to a
MR. KING (Interposing): Your Honor, I renew my objection.
A. (Continued) Admiral Canaris -
THE PRESIDENT (Interposing): One moment. He may answer the question.
A. Admiral Canaris in more than one way participated in the preparation of the decree. For once, I mentioned the notice by Keitel which I have mentioned in the examination by the Prosecutor, I passed that on to Canaris as far as the contents were concerned so that he was immediately informed about it. Then, the department up there, which was headed by Canaris, participated in the conferneces which took place in my department-conferences with all offices concerned of OKW, and branches of the Armed Forces.
Furthermore it is known to me from repeated information received from sources that Admiral Canaris exerted considerable pressure on Keitel, that tho competence of the civilian courts should be established for cases pending in Germany at that time.
Q. Is that all you can say about this subject, Witness? In connection with that question, you mentioned your own efforts to thwart the influence of Koitel and Hitler, but you have added the remark that details are not relovant. It is possible that details are not interesting for tho gentlemen of the Prosecution, but they are very interesting for me, so much so, that I want to ask you to describe these details.
MR. KING: It seems to me that if the details were not brought out in cross examination - I mean direct examination, at the discretion of the Prosecution, it is not up to the Defense Counsel at this time to continue the direct examination. At a later time, if they want to recall this witness and conduct their own direct examination, that certainly is within their own province. I, therefore, object to the question.
DR. SCHILF: May I say something in this connection? The witness limited his statement and did not wait until the Prosecution interrupted him. He, in his own mind, was of the opinion that the details were probably not interesting. The fact, therefore, that now, in the cross examination, I should like to hear what he could tell us about details.
JUDGE BRAND: May I ask you are you attempting to bring out that some one of the defendants in this case was attempting to sabotage Hitler's program, or is your question limited as to whether some other person, a stranger to this case, opposed that program, I do not see the relevancy of what you are talking about.
DR. SCHILF: May I say the following: All those amongst the defendants who were later in any way connected with the nacht und nebel decree were informed that it was a task forced upon them and that they were further controlled accordingly. As the witness has said, it was only possible for one man to work out an idea of that kind, and that was Hitler, and all jurists under the influence, and that if they wanted to exert influence against the resistance, they acted accordingly. Not only the jurists in the so-called Armed Forces administering justice but also the jurist of the Ministry of Justice. For that reason it seems relevant to me to hear everything -- anything which has been done in the way of attempts to persuade Hitler in one point or more to modify his idea.
JUDGE BRAND: Do you think that evidence that this witness or some other admiral opposed Hitler in this respect constitutes evidence that any of the defendants opposed him?
DR. SCHILF: I cannot say right now whether one or another of the defendants who are right here have resisted against the order of Hitler. I am only concerned to ascertain what resistance was offered by the offices concerned, that the attempt of resistance became known, and that, accordingly, the defendants here applied-in other words, the matter from the beginning was considered with a great deal of suspicion, a great deal of averison, also on the part of the Ministry of Justice when they had to accept it, and, therefore, it seems to me to be relevant to find out what those people who were closer to Hitler did on their part in order to thwart what had been ordered, as the witness expressed himself.
THE PRESIDENT: You may answer the question, witness.
WITNESS: In order to answer this question I have to point out first, that immediately resistance against Hitler, I could not offer - that is, personally - because I have never seen Hitler all during the war. My resistance waould only be such that I influenced Field Marshall Keitel, and that I tried to include all other relevant factors. I have stated that in lengthy conferences I attempted to persuade Field Marshall Keitel 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 who should, in the end, deal with it.
That was also the opinion of the leading jurists of the Armed Forces in France, and so I tried by means of delay, such as one learns in the Ministry, to delay the decree that defeated only to a very limited measure, because Hitler was very impatient and put pressure on Keitel, and through Keitel; by that delay I had another purpose in mind. I wanted to see that the commanders in chief of the branches of the armed forces should speak up against the decree. The position of Keitel with regard to Hitler was very weak, as far as Keitel was concerned, and I always hoped that one of the commanders in chief would interfere. I did not hear that that ever happened. Of considerable importance was the activity of Canaris, which has already been described, and as far as the practical consequences were concerned, the decree was applied against its own meaning. In the direct examination I had explained that only those cases were to remain in France, where immediate execution of death sentence was possible. This expression "immediate" was interpreted by the judges in France in a modified way, in practice. They applied the work "immediate" to mean immediately after the investigation was concluded regardless how long that may have lasted; whereas, the sense, the real meaning, was "immediately" - that is, immediately after an act had been committed, or after the culprit had been seized. In that way it came about that many more cases remained in France than Hitler had intended. Our main struggle was directed against the fact that these cases were to be kept secret. Later on applications were made by the families and by the Red Cross, which cut deep into our hearts. These requests and inquiries I protected again and again.
THE PRESIDENT: I think the answers are going beyond the question. We will recess at this time for fifteen minutes.
(A 15-minute recess was taken)
THE MARSHAL: The Tribunal is again in session.
BY DR. SCHILF:
Q Witness, I would like to ask you to complete your interrupted answer.
A Before I was interrupted, I had stated that, above all, we made the attempt, again and again, as to the exclusion of the public, which was the main idea of Hitler, to fight against it, and, later on, to have it modified. That was again and again refused, and refused by Keitel. I do not know to what extent he discussed the matter with Hitler.
However, that goes over into the later time of the decree, while the defense counsel probably wants to know what we did during the beginning of the decree. I have described that briefly, and without any doubt the Referenten, the men in charge of the matter in both offices, discussed this. In any case-
THE PRESIDENT (Interposing): One moment. It isn't on that subject that he wanted to supply details during the direct examination. He got beyond the point where he desired, apparently, to give details.
BY DR. SCHILF:
Q Witness, you understand my question correctly, as such. For the time being I wanted to hear only what resistance you and other circles offered before the decree was promulgated. Do you have anything to add to that matter?
A No, I have stated the essential things.
Q During your explanation you repeatedly spoke about the chief jurists of the Wehrmacht Division who shared your opinion. I would like to ask you to name these chief jurists and the offices they held at the time.
A In the Army there was Ministerial Director Herr Neumann. In the Air Force, Ministerial Director Freiherr von Hammerstein. In the Navy, Ministerial Director Rudolphi.
Q May I ask you to state what expert worked with the Chief of the Auslandsabwehr, the Counter Intelligence?
A That was probably Oberst von Bentiwenji, Colonel von Bentiwenji, Chief of Counter Intelligence III. I do not remember that exactly.
Q Thank you. Witness, I may ask you briefly, since I do not understand this thing very clearly, whether the concept of Wehrmacht justice has become quite clear, and therefore I would ask you to explain it, Werhmacht Justiz.
A I understand the war courts of the entire Wehrmacht, the court martials.
Q Could you explain the division briefly?
A Every part of a division of the Wehrmacht, the German armed forces, had its own administration of justice, under the Oberefehlshaber, the commander in chief, and the chief of the legal division concerned.
MR. KING: Your Honor, I wonder what possible relevance a discussion of the branches and divisions of the Wehrmacht legal setup is at this time. It seems to me that the Ministry of Justice and not the Wehrmacht legal division is under consideration at this time before this Tribunal, and I don't see that the witness' testimony on the divisional setup in the Wehrmacht is of the slightest interest or relavance at this time.
THE PRESIDENT: The objection will be sustained.
BY DR. SCHILF:
Q I would like to remark that my question was offered only out of politeness toward the Court, because it had not been made quite clear whether the civil justice and the military justice had been made clear, the distinction between them during the statements of the witness. It is not right to say civil justice, because the witness also used that concept. Therefore I wanted to ask him what he means by that also.
A The correct expression would have been "the general administration of justice, Allgemeine Justiz."
Q Thank you very much. I may also ask you, the Fuehrer Decree contained directives under the signature of Keitel as Chief of the OKW. Can you explain to what extent the authority of command of the OKW applied to the Ministry of justice, or rather, how the authority of command of Keitel could have been applied legally to the Ministry of Justice and how it happened altogether that this decree issued by Keitel for the general justice administration was decisive or was applicable to the general administration of justice?
A I believe that there is a misunderstanding at the basis of the question of the defense counsel. The decree is divided into the main decree, Haupterlass, and into the regulations for execution of the Chief of the OKW. In the main decree it says, if I still remember it correctly, in the last sentence of the decree, the Reichminister of Justice issues the executive orders for his domain.
Q That is correct. You stated that literally. My question -
A That Keitel could not order as chief of tho OKW, but because the decree was called a Fuehrer decree and issued for the Fuehrer and with his consent by Keitel, so to say that it was signed by Keitel as deputy for the Fuehrer. Thus it is a Fuehrer decree and not a Keitel decree. The executive orders apply to tho Wehrmacht, to the armed forces. The Minister of Justice, as far as I remember, had to issue his own executive regulations.
Q The regulations of the Minister of Justice are based on the decree of Keitel which he, on order of Hitler as the legister, had signed.
A Yes, that is correct.
Q Witness, during the discussions which led to the decree you pointed out and apparently during your discussions with Keitel that you personally considered the decree contrary to International Law. During the first and probably decisive discussion with Freisler, as far as I have been informed, you were not supposed to have uttered these misgivings toward Freisler or told them to Freisler.
A The misgivings referred to the case that there would be no sentencing by a judge, for through the Hague Convention regarding the rules of land warfare we had been obliged to sentence even spies by courts, legally, judicially. That is, in the appendix to the rules, orders regarding the rules of land warfare, it was expressly stated there.
These were my misgivings. And these main misgivings were eliminated through the compliance of the Ministry of Justice, that which took over these matters.
Q Through the discussion with Freisler your misgivings were completely eliminated?
A Yes, this one misgiving was eliminated.
Q And as far as the so-called Nacht and Nebel affairs remained with military jurisdiction, did you have any other misgivings still?
A There were misgivings of various natures.
Q I mean the misgivings regarding international law which you mentioned that there was no real judge.
A No. For the courts of the Wehrmacht, the armed forces, judged as they had done heretofore.
Q During the direct examination the military trials before the NN-decree, the Nacht und Nebel decree, and the military justice afterwards you compared and, if I understood you correctly, during your last answer you said that by the taking over on the part of the administration of justice these misgivings regarding international law had been completely obviated. Thus these matters were not under military justice, but under the general administration of justice, and that thus the trial before the issuance of the decree, legally speaking, had been restored. Did I understand you correctly?
A Yes.
Q I would like to put only one mere question for explanatory purposes. You spoke about the resistance against the decree. You then implied that modifications were attempted later on. All of these changes were to the effect to protect the defendants, or were there other reasons for it?
A There were other motivating reasons, motives of many kinds. In the center there was, naturally, the defendant. But politically also I considered the decree a catastrophe, and I was of the opinion that such means were politically unwise. But as I said, we were informed that generals and jurists were not competent for this.
Q If you affirm that every attempt was made to put the defendant in front of a judge and to offer him a certain protection, then I would ask you to explain still your former statement that in the discussion with Freisler in October 1941, Freisler is supposed to have told you that the taking over of these trials by the administration of justice was the lesser evil, compared to the original wish of Hitler to hand these matters over simply to the Gestapo.
A I believe that my words were not given back quite correctly, or else I didn't express myself clearly. I believe I used these words in regard to the attitude of Hitler toward the two different administration of justice an evil. That was, I believe, the meaning of what I said, and in that connection I then used the word, the lessor evil.
Q It is possible that I misunderstood this. I would only like to ask you also in regard to this discussion which you had with Freisler, was it a discussion with only the two of you present?
A Yes.
Q Now may I ask you to make a statement as to what attempts were made, after the decree had been promulgated, to increase the protection for the defendant?
A These attempts referred to the so-called closing away from the public. The condemned was, according to Hitler's order, not to be in any contact with the public any more at all. And that brought it about that very bad conditions, difficulties, resulted from this the longer the decree was in effect. When the decree was planned and ordered, nobody was probably figuring on it that it would be in effect for such a long time.
First we hoped that it would run into the ground; and secondly, we did not count upon such a long duration of the war. Both of these expectations were wrong, and therefore we tried to have a loosening up of these secrecy regulations. We did that in the following way: we forwarded applications to Keitel, and that is such applications which made these conditions very apparent. My statements which I made before, referred to the fact that these applications were refused.
Q Witness, was your affidavit of the 23rd of September 1946 shown to you already?
A Yes.
Q For the information of the Court, it is NG-484, Exhibit 307 in Document Book VI; the German Text Page 15, the English Text Page 18. On the second page -- Page 16 in the German -- you made the following testimony which I want to read to you: "In view of the secret nature of the Nacht and Nebel cases, no witnesses as a rule could be summoned for interrogation in Germany and they had to be tried on the basis of reports and interrogations sent and complied with by the investigating authorities in the occupied territories." -- Page 19 in the English -- "If, for example, a Frenchman was to be tried by Nacht and Nebel procedure in Cologne, the public prosecutor in Cologne would, as I recall it, write to the German police in Paris and request that certain witnesses be examined." May I ask you, witness, which legal consequences, so to say, were a result of this which you testified here that is to say, the consequences that no witnesses could be heard?
A I have to make the following remark. When I made this statement, which the defense counsel has just read, I had not seen the decree for a long time. I believe it is not expressed quite succincyly, namely, what I said in the affidavit. Certainly, it was possible also to have witnesses in France interrogated through an interrogator or a judge; that is, to supplement the statement. Moreover, we in the military administration of justice did not have a conclusive judgment about the effect of the regulation because by far most of the trials were referred to the general administration of justice.
However, for purposes of general understanding, I have to say that the judges and the Gerichtsherren in the occupied territories and especially in France issued regulations according to which trials were handed over to Germany only if the investigations within the country showed not only a sufficient suspicion but a serious suspicion that the offense had been committed. So, the military commander-in-chief in France acted in this manner -- in whose sphere of work most cf these trials started, and likewise, the commander-in-chief of the Luftlotte -the Air Group France. In this way, it was intended that in all possibilities, only such trials were handed over in which the evidence had essentially been found already. In this manner, the regulations regarding the limitations for the examination of witnesses which hampered the trial should be made ineffective inasfar as possible.
Q But you must have found out that because of this limitation upon the examination of witnesses before the court in numerous cases, it was not possible to convict a defendant, and therefore there were a number of acquittals.
A Yes, that is correct.
Q My general question is to the effect that by this legal treatment of the NN-cases, inasfar as they were handed over to the Reich, was that a favorable circumstances for the defendant also regarding the procedure in the trial, not only regarding the fact that in this way first of all he was taken out of the hands of the Gestapo?
A I cannot answer that with yes or no. The meaning of the jurisdiction in sabotage cases is of course a deterrent-
Q Witness, I think you misunderstood me. I only wanted to hear about the legal procedure in the trial, namely, from the point of view cf the administration of justice, this matter was treated by justice. Was there not a very serious advantage achieved for the defendant compared to the situation if these people had simply been handed over to the Gestapo as Hitler wished it?
MR. KING: Your Honor, the question elicits a hypothetical answer to a hypothetical situation. The witness was in no position to compare the two, and for that reason, I think he should not he allowed or permitted to answer the question.
THE PRESIDENT: The objection will be sustained.
BY DR. SCHILF:
Q Witness, I would like to ask you now what conception one had when the decree was issued and immediately after that -- before the executive orders were issued -- what conception people generally had as to what should become of those who had been acquitted by the German courts?
A This question was already put to me by the interrogator and unfortunately I cannot answer it now either. It is peculiar that the decree does not say anything about this. Also, the executive regulations don't say anything about this; and I don't remember any more whether during the trials -- during the executions -- this was simply overlooked or whether the people in the discussion thought first of all: we shall complete this decree for until this question will become of practical significance it will probably have been repealed already. I don't remember any more hich of these considerations counted.
Q Later, in practical cases, did you find cut how these matters were handled and can you tell me on the basis of which orders this was handled?
A Only after my interrogation by the interrogator did I remember to a certain extent again -
MR. KING: I think with that introduction to his answer we do not need to hear his answer further. He said he has no personal knowledge; that he learned cf it only after the interrogation, as I understood him. Perhaps my interpretation is incorrect, but I understood him to say that he now recalls -- on the basis of what he learned in the interrogation.
If that is true, I submit the answer should not be given. If it is a matter of refreshing his memory, then of course it falls into a different category.
DR. SCHILF: I would be in a position to refresh his memory in case the witness does not have to say anything else in answer to this question after the interruption.
MR. KING: Of course, we have no objection to Dr. Schilf referring to the record which is replete with instances of what happened to these people, and if that will serve to refresh the witness' recollection, we have no objection of course to such refreshing.
THE PRESIDENT: The witness may answer.
A. I believe that now I remember that this question in the latter course was discussed; whether it was first discussed in the armed forces, in the Wehrmacht; or first in the general Administration of Justice; whether it appeared first in one or the other, I do not remember any more. In the sphere of the Wehrmacht, the courts in individual cases, if they could not bring any evidence, the courts interrupted the trial because a correction of acquittal by the Gestapo was not desired by us; we found it undersirable. I believe that in the general Administration of Justice those who had been acquitted did not remain in the institutions of the Administration of Justice, but were handed over to the police. However, I do not remember these events very clearly.
Q. I would like to ask you to clarify what you said; you said they were handed over to the Gestapo; wouldn't that look as though the general Administration of Justice had the initiative in this. Do you know anything about the so-called "Abgegebenwurden", the return order?
A. No, I don't know that expression.
Q. I may ask you, however, by whom were the prisoners from the occupied territories handed over to the general Administration, brought over to the general Administration of Justice?
A. According to the original decree, the Geheime Feldpolizei, the Secret Field Police, were supposed to do that. However, it became apparent that the forces were insufficient because it was a very small force: they did not have very many people. The practice developed to have the transport to Germany carried out by the Sicherheirspolizei in France. That happened, I think I remember, after intervention by the divisions up there, counter-intelligence in the high command, which made representations to tho fact that the Secret Field Police could not handle these cases. I am not quite sure about this last point.
Q. The result was thus that these prisoners were handed over to the detention of either the Field Police or the Gestapo.
A. Yes.
Q. And then they were given over to the Justice Administration?
A. Yes.
Q. I now ask you if they were acquitted, when they were acquitted whether then the original order of detention of those two authorities again became effective, that is, either the Secret Field Police or the Gestapo after some one had been acquitted he was dismissed from the Administration of Justice?
A. Yes.
Q. Thus you just affirm that the detention then went over again to the original police authority?
A. At least I do not remember any more now what discussions were conducted about this; what you said is just a conclusion.
Q. Thank you. That is enough for me. I only wanted to ask you if the Nacht und Nebel Decree and executive regulations was in each case in all occupied territories in the same way announced and promulgated, that is, applied, or were there any differences within the different territories?
A. In the entire east the decree was not effective at all. I believe the decree itself says where it is to be applied; where it was to be applied.
Q. That is not the case, but referring to the decree we can find that out. I only want to ask you the concrete question: Does the decree, for example, was the decree for example handled differently in France than in the Netherlands?
A. In the Motherlands there existed a special resistance to the decree. Any how, it was very difficult to apply; it was difficult to have it accepted because the gentlemen of the court, the Gerichteherrn, as well as the judges, were very angry about this discrimination of the military administration of justice. Then, it was up to the personalties; it depended upon the personalties, that is, the generals as well as the jurists, how the decree was handled in practice.